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ETHICS   IN  SERVICE 


BY 


William  Howard  Taft 


Addresses  Delivered  in  the  Page  Lecture 
Series,  1914,  before  the  Senior  Class  of  the 
Sheffield  Scientific  School,  Yale  University 


NEW  HAVEN  :  YALE  UNIVERSITY  PRESS 

LONDON:  HUMPHREY   MILFORD 

OXFORD  UNIVERSITY  PRESS 

MDCCCCXV 


^yf^   ^Mj^j^ 


Copyright,  1915 
By  Yale  University  Press 


First  printed  October,  1915,  1000  copies 


PREFACE 

The  legal  profession  discharges  a  most  impor- 
tant function  in  a  civilized  community,  and  it 
seems  to  me  that  a  discussion  of  the  ethics  and 
ideals  of  that  profession  would  come  within  the 
purpose  of  the  Page  foundation,  which  is 
described  by  the  donor  as  intended  to  promote 
^^the  ethical  side  of  business  life,  including  the 
morals  and  ethics  of  public  service/'  I  shall  first 
ask  your  attention  to  the  history  of  the  profession, 
which  shows  that  a  paid  advocacy  is  the  only 
practical  system,  and  to  the  rules  of  conduct  to 
which  lawyers  must  be  held  in  order  that  such 
a  system  shall  promote  justice.  I  cannot  claim 
to  have  any  peculiar  knowledge  upon  this  subject 
other  than  that  derived  from  a  somewhat  brief 
practice  of  five  years  at  the  Bar,  from  an  expe- 
rience of  eleven  years  on  the  Bench  of  trial  and 
appellate  courts,  from  a  somewhat  varied  expe- 
rience in  the  responsibility  of  government,  not 
only  in  this  country,  but  in  those  far-distant  isles 
of  the  Pacific  in  which  the  United  States  has  been 
grafting  the  principles  of  free  government  upon 
a  civilization  inherited  from  Spain. 


6465*J2 


CONTENTS 


I.  History  of  the  Profession  of  Law 

II.  Legal  Ethics    .... 

III.  The  Executive  Power 

IV.  The  Signs  of  the  Times    . 
V.  More  Signs  of  the  Times 


PAGE 
1 

19 
37 
65 

83 


ETHICS  IN  SERVICE 


CHAPTER  I 
HISTORY  OF  THE  PROFES.SION/OFLAW;' 

It  is  not  too  much  to  say  that  the  profession 
of  the  law  is  more  or  less  on  trial.  It  is  certain 
that  there  is  a  crisis  in  the  life  of  our  courts,  and 
that  a  great  political  issue  is  being  forced  upon 
the  people,  for  they  must  decide  whether  the 
courts  are  to  continue  to  exercise  the  power  they 
now  have,  and  what  character  of  service  they 
shall  be  required  to  render.  Judges  are  lawyers. 
They  ought  to  be  trained  practitioners  and 
learned  in  the  profession  of  the  law  before  they 
ascend  the  Bench,  and  generally  they  are.  There- 
fore, our  courts,  as  they  are  now  conducted,  and 
our  profession,  which  is  the  handmaid  of  justice, 
are  necessarily  so  bound  together  in  our  judicial 
system  that  an  attack  upon  the  courts  is  an  attack 
upon  our  profession,  and  an  attack  upon  our 
profession  is  equally  an  attack  upon  the  courts. 

We  have  all  noted  on  the  stage  and  in  the  cur- 
rent literature  the  flippant  and  sarcastic  refer- 
ences to  the  failures  of  the  administration  of 
justice,  and  we  are  familiar  with  the  sometimes 
insidious  and  too  often  open  impeachments  of  the 


2  ETHICS  IN  SERVICE 

courts,  whicli  appear  in  tlie  press  and  upon  the 
hustings.  They  are  charged  with  failure  to  do 
justice,  with  bad  faith,  with  lack  of  intelligent 
sympathy  fo'*  socially  progressive  movements, 
with  a  rigid  and  reactionary  obstruction  to  the 
movement  tov/ard  greater  equality  of  condition, 
and  with  a  hidebound  and  unnecessarily  sensitive 
attitude  of  mind  in  respect  to  the  rights  of  prop- 
erty. One  count  that  looms  large  in  the  wide 
range  of  the  indictment  against  our  judicial 
system  is  the  immoral  part  that  lawyers  are  said 
necessarily  to  play  in  the  perversion  of  justice 
by  making  the  worse  appear  the  better  reason. 
Such  a  public  agitation  and  such  an  issue  in 
politics  lead  to  a  consideration  of  the  fundamental 
reasons  for  the  existence  of  our  profession  in  the 
past,  and  a  further  inquiry  as  to  the  need  for  it 
in  the  future,  as  preliminary  to  a  discussion  of 
the  rules  of  conduct  that  should  govern  its 
practice. 

There  are  those  who  intimate  that  we  can  learn 
nothing  from  the  past.  They  don't  say  so  in  so 
many  words,  but  they  proceed  on  the  theory  that 
man,  under  the  elevating  influences  with  which 
they  propose  to  surround  him,  is  suddenly  to 
become  a  different  creature,  prompted  by  different 
motives.  But  those  of  us  who  have  been  fortunate 
in  having  an  education  permeated  with  an  atmos- 
phere of  common  sense,  and  an  idea  of  how  to 


HISTORY  OF  THE  PROFESSION  OF  LAW     3 

deal  with  human  nature  as  it  is,  realize  that  the 
world  is  not  to  be  reformed  tomorrow  or  in  a 
month  or  a  year  or  in  a  century,  but  that  progress 
is  to  be  made  slowly  and  that  the  problems  before 
us  are  not  so  widely  different  from  those  which 
were  presented  to  our  ancestors  as  far  back  as 
the  Christian  era.  Nor  can  we  fail  to  derive  some 
benefit  from  a  consideration  of  such  troubles, 
tribulations  and  triumphs  of  our  profession  in 
the  past  as  suggest  rules  of  conduct  for  lawyers 
in  the  future.  I  do  not  mean  that  we  are  not  to 
aspire  for  better  things.  Nor  do  I  wish  to  deny 
us  the  happiness  of  hope  for  reasonable  and  real 
progress  toward  higher  ideals.  I  simply  insist 
that  we  ought  not  to  ignore  the  lessons  of  expe- 
rience when  we  deal  with  conditions  as  they  are 
and  as  everybody  who  is  familiar  with  them 
knows  them  to  be. 

.  The  three  civilizations  in  which  we  may  most 
profitably  study  the  growth  and  development  of 
the  legal  profession  are  the  Jewish,  the  Eoman 
and  the  English.  Among  the  Jews,  the  Mosaic 
law,  which  went  into  the  smallest  details  of  per- 
sonal life,  was  the  guide  to  their  rule  of  action. 
As  it  had  religious  sanction,  the  high  priests 
became  the  actual  ministers  of  justice  and  the 
preservation  of  religion  and  law  was  united  in 
them.  Acting  as  their  assistants,  and  as  assessors 
in  the  tribunals  of  which  the  high  priests  were 


4  ETHICS  IN  SERVICE 

the  head,  were  the  Scribes.  They  were  learned  in 
the  law;  had  a  religious  and  priestly  character 
themselves;  interpreted  the  Mosaic  law  with  a 
view  to  its  application  to  the  various  facts  and 
issues  which  arose;  and  were  in  addition  the 
teachers  of  law.  It  was  to  them  that  the  rabbinical 
injunction  w^as  made  ^^to  make  the  knowledge  of 
the  law  neither  a  crown  wheremth  to  make  a 
show,  nor  a  spade  wherewith  to  dig.^/  And  again 
it  was  said,  ^^He  who  uses  the  crown  of  the  law 
for  external  aims  fades  away.'' 

In  describing  the  principles  of  non-remunera- 
tion to  the  Scribes,  the  learned  German  Professor 
Schurer  says:  ^^In  Christ's  censures  of  the 
Scribes  and  Pharisees,  their  covetousness  is  a 
special  object  of  reproof.  Hence,  even  if  their 
instruction  was  given  gratuitously,  they  certainly 
knew  how  to  compensate  themselves  in  some 
other  way."  And  it  is  because  of  this  evasion 
of  this  rule  that  we  find  those  passages  in  the 
eleventh  chapter  of  Luke,  the  46th  and  52d  verses, 
which  read: 

Verse  46.  ^^And  he  said,  Woe  unto  you  also, 
ye  lawyers !  for  ye  lade  men  with  burdens  grievous 
to  be  borne,  and  ye  yourselves  touch  not  the 
burdens  with  one  of  your  fingers. ' ' 

Verse  52.  ^^Woe  unto  you,  lawyers!  for  ye 
have  taken  away  the  key  of  knowledge :  ye  entered 


HISTORY  OF  THE  PROFESSION  OF  LAW     5 

not  in  yourselves,  and  them  that  were  entering 
in  ye  hindered.  ^  ^ 

The  line  between  the  judicial  and  advisory 
functions  of  the  Hebrew  Scribes  was  not  closely 
or  clearly  drawn.  They  were  evidently  supposed 
to  occupy  a  disinterested  position  toward  those 
who  consulted  them  and  to  be  in  a  sense  the 
associates  of  the  judges.  Since  the  motive  which 
prompted  their  study  of  particular  cases  was 
supposed  to  be  only  that  of  vindicators  of  general 
justice,  the  rules  which  nominally  guided  their 
action,  as  announced  by  the  lawgivers,  required 
that  their  services  should  always  be  gratuitous. 
But  quite  naturally  their  consultation  with  private 
litigants  prompted  such  litigants  to  influence 
their  view  of  the  law,  and  command  their  skill 
in  debate.  And  so  to  evade  the  rule  which  pre- 
vented remuneration  they  established  the  custom 
of  giving  presents  in  advance.  These  presents 
given  in  advance  to  secure  the  kindly  favor  of 
the  Scribes  are  interesting  as  the  precursors  of 
that  institution  dear  to  every  English  barrister, 
and  not  unknown — nor  even  objectionable — to 
American  lawyers,  to  wit,  the  Retainer.  In  fact 
it  was  the  impossibility  of  finding  men  who  could 
remain  judicial  in  their  attitude  when  the  thought 
of  remuneration  moved  them  to  advocate  the 
cause  of  one  of  the  litigants,  that  put  the  Scribes 


6  ETHICS  IN  SERVICE 

of  those  days  in  an  indefensible  position  and  led 
to  the  attacks  upon  them  that  we  find  in  the  New 
Testament. 

And  so  it  was  in  Rome.  There  the  progenitor 
of  the  lawyer  was  first  the  priest,  the  Pontifex, 
mingling  judicial  and  advisory  functions,  and 
then  the  patronus  or  the  orator,  a  man  of  wealth 
and  high  standing  in  the  community,  who  had 
gathered  about  him  freed  men  and  Plebeians  as 
his  supporters.  The  latter  were  known  as  his 
clientes,  from  which  term  our  word  is  derived. 
When  one  of  his  clients  became  involved  in  a  law- 
suit, the  patronus  appeared  to  advise  the  judge — 
a  magistrate  acting  only  as  vindicator  of  general 
justice  and  often  not  learned  in  the  principles  of 
law — and  was  not  supposed  to  receive  any  com- 
pensation. Less  than  the  patronus,  but  exercising 
similar  functions,  was  the  advocatus — who, 
though  perhaps  not  so  learned  in  the  law,  nor  so 
formidable  as  a  person,  was  able  to  assist  the 
patronus  before  the  tribunal  on  behalf  of  others. 
There  was  in  addition  a  body  of  men  called 
^^  jurist  consults, '^  learned  in  the  law  and  able  to 
advise,  who  came  to  be  recognized  as  the  members 
of  a  select  profession  in  the  time  of  Augustus. 

In  the  year  200  before  Christ,  the  Cincian  law 
was  enacted,  requiring  that  service  of  the  patronus 
and  the  advocate  should  be  gratuitous,  but  it  was 
soon  evaded  even  as  the  Jewish  laws  had  been. 


HISTORY  OF  THE  PROFESSION  OF  LAW     7 

Again  presents  were  made  to  secure  the  skilled 
advocacy  of  men  learned  in  the  law  and  acute  in 
debate.  These  gifts  like  the  Hebrew  ones  were 
paid  in  advance  and  were  called  '4ionorariums,'' 
another  term  which  suggests  the  modern  retainer. 
Neither  an  advocatus  nor  a  patronus  could  sue  for 
such  honorarium  at  law  because  it  was  a  violation 
of  law,  but  once  paid,  the  honorarium  could  not  be 
recovered.  Cicero  boasted  that  he  never  violated 
the  Cincian  law,  but  historians  of  his  period  inti- 
mate that  by  secret  loans  and  testamentary  gifts 
his  practice  proved  to  be  very  profitable.  And  it 
is  certain,  at  least,  that  many  of  his  contempo- 
raries were  made  very  rich  by  professional 
remuneration.  Augustus  directed  the  passage  of 
another  law  forbidding  compensation  to  orators 
and  advocates,  but  it  was  disregarded  and  subse- 
quent emperors  contented  themselves  with  fixing 
limits  for  the  fees  to  be  charged.  In  the  golden 
age  of  the  Roman  law,  therefore,  the  payment  of 
the  profession  became  recognized  as  legitimate 
and  the  profession  itself  became  a  definite  body 
with  clearly  understood  functions. 

In  England,  for  two  hundred  years  after  the 
Conquest,  the  priests  were  the  only  learned  men, 
and  they,  too,  like  the  Scribes,  acted  as  judges 
and  advisers  of  litigants.  Even  as  late  as  the  time 
of  Henry  VIII,  as  we  know,  the  Keeper  of  the 
Eang's  Conscience  and  the  head  of  the  Court  of 


8  ETHICS  IN  SERVICE 

Equity,  was  an  Ecclesiastic  in  the  formidable 
person  of  Cardinal  Woolsey.  About  the  reign 
of  King  John,  laymen  became  lawyers,  and 
in  Henry  III^s  time  the  Pope  forbade  priests  to 
fit  themselves  in  civil  law  or  to  act  as  advisers 
in  respect  to  it.  We  may  properly  say  that  the 
profession  of  the  Bar,  as  a  recognized  English 
institution,  had  its  beginnings  in  the  struggle  for 
individual  rights  by  which  the  English  race 
forced  the  great  charter  from  King  John.  We 
find  that  in  the  history  of  the  early  English 
administration  of  justice,  bailiffs,  undersheriffs, 
clerical  attaches  and  the  underlings  of  the  courts 
had  gone  into  the  business  of  acting  as  attorneys, 
of  cheating  their  clients,  and  of  stirring  up 
litigation.  While  statutes  were  directed  against 
their  abuses,  I  cannot  find  that  there  was  any 
English  statute  forbidding  lawyers  to  receive 
compensation  for  their  services,  although  the 
action  of  the  Pope  in  forbidding  his  priests  to 
study  and  practice  law  in  England  may  indicate 
some  such  abuses.  It  is  certain  that  legal  services 
were  not  regarded  as  creating  a  debt  due  from 
the  client  to  the  lawyer  who  had  served  him.  By 
statute,  now,  attorneys  and  solicitors  in  England 
are  entitled  to  fixed  fees  for  professional  services. 
But  in  the  case  of  barristers,  down  to  the  present 
time,  while  they  may  demand  a  retainer  for  their 
services  in  advance,  they  still  cannot  recover  by 


HISTORY  OP  THE  PROFESSION  OF  LAW     9 

suit  if  the  services  are  rendered  without  receiving 
it.  This  may  possibly  be  derived  from  the  early 
Roman  and  Jewish  view  of  the  professional 
relation  and  suggests  the  probability  that  early 
in  English  history  professional  services  were 
deemed  to  be  gratuitous. 

The  grant  of  Magna  Charta  by  King  Jolm,  in 
response  to  the  demand  of  the  Barons  at  liunny- 
mede,  gave  birth  to  the  Bar  in  its  modern  char- 
acter. Articles  17  and  18  of  that  instrument 
provided  that  Common  Pleas  should  not  follow 
the  court  of  the  Eang,  but  should  be  held  in  a 
certain  place,  and  that  trials  upon  certain  writs 
should  not  be  taken  outside  of  their  proper 
counties.  It  provided  further  that  the  King  or 
the  Chief  Justice  should  send  two  justiciaries 
into  each  county,  four  times  in  the  year,  to  hold 
certain  assizes  mthin  the  county,  with  four 
knights  of  the  county,  chosen  by  it,  on  the  day, 
and  at  the  place  appointed.  The  45th  article 
promised  that  the  King  would  not  make  Justi- 
ciaries, Constables,  or  Bailiffs  excepting  of  such 
as  knew  the  laws  of  the  land  and  were  w^ell 
disposed  to  observe  them.  The  result  of  this 
provision  by  which  Common  pleas  courts  came 
to  be  held  at  Westminster,  while  regular  assizes 
were  held  in  the  counties,  w^as  the  establishment 
of  the  four  Inns  of  Court,  so-called,  Lincoln's  Inn, 
the  Inner  and  the  Middle  Temple,  and  Gray's  Inn, 


10  ETHICS  IN  SERVICE 

together  with  a  number  of  others  knoT\Ti  as 
Chancery  Inns,  which  have  of  late  years  dis- 
appeared. Henry  III  took  these  Inns  under  his 
especial  protection  and  prohibited  the  study  of 
law  anywhere  in  London  save  in  the  Inns  of  Court. 
They  were  the  homes  of  the  Bar,  for  within  their 
walls  lawyers  had  their  offices,  and  there  students 
of  the  law  received  their  education.  In  fact,  they 
may  be  said  to  constitute  the  foundation  of  the 
modern  profession  of  the  law  in  the  English- 
speaking  race. 

The  Inns  of  Court  were  at  first  an  aristocratic 
institution,  and  only  men  of  good  blood  were  per- 
mitted to  practice  in  them.  Indeed,  that  was  the 
case  in  the  early  days  in  Rome.  Pliny  reports 
that  no  one  could  become  a  jurist  consult,  an 
advocatus  or  a  patronus  except  he  be  of  the  Patri- 
cian class.  But  soon  after  the  Empire  began, 
this  rule  broke  down  and  the  Roman  Bar  became 
open  to  all.  So,  too,  in  the  English  Bar  at  first 
admission  was  controlled  by  the  Benchers  or 
governing  bodies  of  the  Inns  of  Court  and  the 
students  were  chosen  only  from  good  families. 
It  was  probably  this  that  led  to  their  unpopularity 
and  to  the  denunciation  which  they  received  in 
Wat  Tyler's  day,  in  the  fourteenth  century,  and 
from  Jack  Cade's  followers  whom  Shakespeare 
makes  wish  to  kill  all  the  lawyers  in  the  next 
century.      Their    exclusive    spirit   passed   away, 


HISTORY  OF  THE  PROFESSION  OF  LAW  11 

however,  and  while  aristocratic  class  distinctions 
were  rigidly  maintained  in  English  society,  the 
Bar  became  most  democratic  through  the  avenue 
to  positions  of  highest  influence  on  the  Bench  and 
in  politics  which  it  freely  offered  to  able  men  from 
the  people.  And,  indeed,  there  is  no  part  of  Eng- 
lish history  that  is  so  full  of  interest  as  the  stories 
of  her  great  lawyers,  who,  beginning  in  the 
humblest  conditions  of  life,  fought  their  w^ay  by 
real  merit  into  positions  of  control  in  the  govern- 
ment and  thus  gave  ability  and  strength  to  the 
aristocracy  of  which  they  became  a  part. 

In  the  three  centuries  or  more  after  the  estab- 
lishment of  the  Inns  of  Court,  no  division  ap- 
peared in  the  profession  of  the  law,  and  it  was 
not  until  about  1556  that  the  profession  became 
separated  into  attorneys  at  law  and  solicitors  in 
chancery,  on  the  one  hand,  and  barristers  on  the 
other.  The  former  dealt  directly  with  clients  and 
performed  the  preliminary  work  of  drafting 
documents  and  preparing  briefs,  while  the  latter, 
the  barristers,  drafted  the  pleadings  and  pre- 
sented the  causes  in  court.  A  similar  division  of 
functions  prevailed  in  the  Roman  Bar.  I  shall 
have  occasion  later  to  comment  on  the  advantages 
and  disadvantages  of  this  division,  but  this  sum- 
mary reference  is  sufficient  for  my  present 
purpose  in  tracing  the  history  of  the  Bar  in 
England. 


12  ETHICS  IN  SERVICE 

During  this  period,  after  the  establishment  of 
the  Inns  of  Court,  the  unpopularity  of  the  Bar 
manifested  itself  in  the  enactment  of  statutes 
forbidding  the  election  of  lawyers  to  Parliament. 
This  gave  rise  to  the  noted  Parliament  known  as 
the  *^ Dunces  Parliament,^'  because  everybody 
who  knew  anything  about  the  law,  and  therefore 
about  the  framing  or  the  operation  of  statutes, 
was  excluded  from  membership. 

In  his  interesting  history  of  the  American  Bar, 
Mr.  Charles  Warren,  of  the  Boston  Bar,  says : 

*^  Lawyers,  as  the  instruments  through  which 
the  subtleties  and  iniquities  of  the  Common  Law 
were  enforced,  were  highly  unpopular  as  a  class 
in  England  during  the  period  of  Cromwell  and 
Milton. '^ 

Milton  wrote : 

**Most  men  are  allured  to  the  trade  of  law, 
grounding  their  purposes  not  on  the  prudent  and 
heavenly  contemplation  of  justice  and  equity, 
which  was  never  taught  them,  but  on  the  prom- 
ising and  pleasing  thoughts  of  litigious  terms,  fat 
contentions  and  flowing  fees.'' 

As  examples  of  a  lawyer 's  reputation  in  London 
in  the  seventeenth  century,  Mr.  Warren  cites  the 
titles  of  the  following  tracts  printed  at  that  time : 
*  ^  The  Downfall  of  Unjust  Lawyers  " ;  *  ^  Doomsday 


HISTORY  OF  THE  PROFESSION  OF  LAW  13 

Drawing  Near  with  Thunder  and  Lightning 
for  LaAvyers'^;  ^*A  Rod  for  Lawyers  who  are 
Hereby  declared  Robbers  and  Deceivers  of  the 
Nation^';  ^' Essay  where  is  Described  the  Law- 
yers, Smugglers  and  Ofllicers  Frauds.'* 

I  note  these  facts  as  I  progress  to  indicate  and 
reinforce  my  original  statement  that  the  present 
time  is  not  the  only  time  in  the  history  of  civiliza- 
tion when  la\^^ers  have  received  the  condemnation 
of  their  fellow  subjects  or  fellow  citizens.  Yet 
not  only  has  the  profession  survived  such  move- 
ments but  its  usefulness  has  been  recognized  in 
succeeding  crises. 

I  need  hardly  mention  that  most  of  the  progress 
toward  individual  liberty  in  English  history  was 
made  through  the  successful  struggle  of  the 
lawyers  against  the  assertion  of  the  divine  right 
of  Kings  and  through  the  defence  of  privilege  by 
members  of  our  profession.  Lawyers  like  Lord 
Coke  and  Lord  Hale  stand  out  in  the  profession 
for  their  maintenance  of  the  independence  of  the 
judiciary  and  their  support  of  the  liberties  of 
subjects.  The  great  charters,  the  Petition  of 
Eight,  the  Habeas  Corpus  Act,  the  Bill  of  Rights, 
and  the  Acts  of  Settlement,  establishing  the 
judiciary  independent  of  Royal  control,  were 
obtained  at  the  instance  of  lawyers  who  knew 
better  than  any  other  class  the  absolute  necessity 


14  ETHICS  IN  SERVICE 

for  such  reforms  in  the  maintenance  of  free 
institutions. 

The  evolution  of  the  Bar  in  this  country  during 
colonial  times — especially  in  New  England — was 
a  curious  counterpart  of  the  history  of  the  English 
Bar  three  centuries  before.  The  founders  of  New 
England  came  here  to  escape  a  persecution  for 
their  religious  beliefs  and  law  was  closely  con- 
nected in  their  minds  with  the  injustices,  the 
inequalities  and  the  rigid  hardships  of  the  common 
law  as  administered  by  judges  appointed  and 
removable  at  the  will  of  the  Tudors  and  Stuarts. 
At  that  time  lawyers  exercising  their  profession 
were  the  instruments  of  a  system  that  had  become 
non-progressive.  They  had  lost  the  principles  of 
justice  in  technicalities  and  had  become  mere 
political  tools  in  the  hands  of  tyrants.  But  in 
England,  the  law  soon  lost  its  narrowing,  hard 
and  inflexible  character  through  the  intervention 
of  courts  of  equity  and  through  the  genius  and 
broad  views  of  great  judges  of  common  law  like 
Mansfield.  It  was  modified  further  by  the  civil 
law  and  by  the  needs  of  a  developing  world  com- 
merce, and  after  the  action  of  the  Long  Parlia- 
ment and  the  Revolution  it  was  no  longer  used  as 
an  instrument  of  tyranny. 

In  this  country,  however,  the  Puritans  and  the 
Pilgrims  approved  of  neither  the  common  law  nor 
the  English  judicial  system,  and  as  lawyers  were 


HISTORY  OF  THE  PROFESSION  OF  LAW  15 

only  part  of  that  system,  they  considered  the 
abolition  of  the  profession  from  their  society  as 
an  end  devoutly  to  be  ^\dshed  for  and  promptly 
sought.  Among  the  Pilgrim  fathers  there  was 
not  a  single  lawyer,  while  among  the  Puritans 
there  were  only  four  or  five  who  had  been  edu- 
cated as  lawyers  and  even  they  had  never  prac- 
ticed. The  consequence  was  that  during  the 
seventeenth  century  and  far  into  the  eighteenth, 
lawyers  had  little  place  in  the  social  or  political 
institutions  of  the  colonies.  In  New  England 
there  was  a  theocracy.  The  judges — none  of  them 
la^\yers — were  all  either  ministers  or  directly 
under  the  influence  of  the  clergy.  A  colonial 
common  law  grew  up  among  them,  based  on  a 
theological  reasoning  and  was  really  adminis- 
tered without  lawyers.  In  the  Massachusetts 
body  of  liberties,  it  was  provided  that  a  man  unfit 
to  plead  might  employ  a  person  not  objectionable 
to  the  Court  to  plead  for  him,  on  condition  that 
he  give  him  no  fee  or  reward.  In  1663  a  usual  or 
common  attorney  was  prohibited  from  sitting  in 
the  general  court. 

As  society  progressed,  however,  as  commerce 
and  trade  increased,  as  wealth  grew,  as  business 
transactions  became  more  extended  and  as  learn- 
ing spread  from  the  clergy  to  other  persons, 
opportunity  and  inducement  were  furnished  for 
the  study  of  the  law,  and  professional  training 


16  ETHICS  IN  SERVICE 

became  more  general.  The  crying  need  for  a 
learned  and  honorable  profession  of  the  law  was 
made  manifest  by  the  growth  of  a  class  of  advo- 
cates and  advisers  whose  influence  was  most 
pernicious.  Litigants  needed  guidance  in  the  pres- 
entation of  their  cases  and  no  learned  profession 
being  available,  the  underbailiffs,  undersheritfs, 
clerks  and  other  underlings  of  the  administration 
of  justice  began  to  practice,  without  real  knowl- 
edge. Greedy  and  lacking  in  principle,  they 
developed  trickery  and  stirred  up  litigation  for 
their  own  profit,  just  as  their  predecessors  had 
done  three  hundred  years  before  in  England. 
Colonial  statutes  were  then  passed,  forbidding 
such  underlings  of  the  court  to  practice  law  at  all. 
But  lawyers  were  not  popular  in  colonial  days 
even  after  the  Bar  became  able  and  respectable. 
In  fact  a  bitter  spirit  was  manifested  against 
lawyers  even  as  late  as  Shays 's  Rebellion  after 
the  Revolutionary  War. 

Between  the  years  1750  and  1775,  more  than  a 
hundred  and  fifty  young  men  from  the  colonies 
were  admitted  to  one  of  the  four  Inns  of  Court 
and  became  educated  lawyers  with  the  purpose 
of  entering  the  profession  in  their  native  colonies. 
How  far  the  presence  of  such  a  class  of  educated 
lawyers  through  the  colonies  contributed  to  the 
resentment  against  the  stupidity  and  injustice  of 
the  English  colonial  policy  which  brought  about 


HISTORY  OF  THE  PROFESSION  OF  LAW  17 

the  Revolution,  cannot  be  estimated  exactly;  but 
certain  it  is  that  the  preparation  of  the  lawyers 
who  were  then  in  their  prime  appears  to  have 
been  Providential  interference  in  behalf  of  the 
people  of  the  United  States.  Never  in  history 
has  the  profession  of  the  law  received  so  great  a 
harvest  of  profound  students  of  the  constitutional 
principles  of  government  as  did  our  country  at 
this  time.  Our  lawyers  signed  the  Declaration 
of  Independence,  served  in  the  Continental  Con- 
gress, acted  as  delegates  to  the  Constitutional 
Convention,  and  met  in  the  various  conventions 
called  by  the  states  to  consider  the  ratification 
of  that  great  instrument.  They  not  only  knew 
that  common  law,  but  they  had  studied  closely 
the  political  history  of  Greece  and  Rome,  and 
were  familiar  with  the  principles  of  government 
as  set  forth  by  Montesquieu  and  Adam  Smith. 

It  was  the  American  Bar  that  gave  to  the 
people  of  the  United  States  such  lawyers  as 
Alexander  Hamilton,  John  Jay,  James  Madison, 
George  Mason,  Thomas  Jefferson,  Patrick  Henry, 
John  Adams,  James  Otis,  Samuel  Chase,  Samuel 
Adams,  Roger  Sherman,  Oliver  Ellsworth,  James 
Wilson,  Edmund  Randolph  and  many  others  not 
less  learned  and  brilliant,  to  establish  their  liber- 
ties, frame  the  limitations  of  their  government 
and  care  for  the  protection  of  individual  rights. 
The  same  Bar  furnished  a  little  later  that  la^vyer 


18  ETHICS  IN  SERVICE 

and  judge,  John  Marshall,  whose  interpretation 
of  the  Constitution  was  as  important  in  its 
beneficent  effect  as  its  original  framing.  That 
Bar  not  only  helped  largely  in  constructing  the 
ship  of  state  but  it  was  also  most  instrumental  in 
launching  it  on  a  triumphant  and  useful  course 
through  a  century  and  a  quarter.  The  profound 
gratitude  of  succeeding  generations  owing  to  such 
a  Bar  ought  never  to  be  dimmed  by  partisan  or 
misguided  diatribes  upon  lawyers  and  judges. 


CHAPTER  II 
LEGAL  ETHICS 

I  HAVE  heard  the  utility  of  legal  ethics  denied. 
It  is  said  that  the  rules  in  legal  ethics  are  the  same 
as  the  moral  rules  that  govern  men  in  every 
branch  of  society  and  in  every  profession — except 
as  there  may  be  certain  conventions  as  to  profes- 
sional etiquette — and  that  if  a  man  is  honest, 
there  ought  to  be  no  difficulty  in  his  following  the 
right  course  in  the  discharge  of  his  professional 
duties.  If  a  man  is  lacking  in  probity  of  char- 
acter, it  is  said  the  discussion  of  legal  ethics  will 
do  him  no  particular  good,  because  if  he  is 
tempted  to  a  crooked  path  or  an  unjust  act  by  his 
pecuniary  interest,  he  will  yield,  and  neither 
lectures  on  ethics  nor  the  establishment  of  an 
ethical  code  mil  make  him  good;  whereas  the 
upright  man  will  either  not  be  so  tempted,  or 
should  he  be,  he  will  clearly  perceive  the  necessity 
for  resisting  the  temptation. 

In  the  course  of  my  consideration  of  this 
subject,  I  looked  into  a  text-book  on  moral  phi- 
losophy and  the  general  system  of  ethics  with  the 
hope  that  I  might  find  something  there  that  would 


20  ETHICS  IN  SERVICE 

suggest,  by  analogy,  a  proper  treatment  of  the 
subject  in  hand.  I  consulted  Paulsen's  **A 
System  of  Ethics. '^  The  analogy  between  moral 
philosophy  and  legal  ethics  is  not  very  close,  but 
I  found  a  passage  or  two  bearing  on  this  very 
issue,  which  it  seems  to  me  might  not  be  inappro- 
priately quoted  here.  In  the  conclusion  of  his 
introduction,  Paulsen  says : 

^^Let  me  say  a  word  concerning  the  practical 
value  of  ethics.  Can  ethics  be  a  practical  science, 
not  only  in  the  sense  that  it  deals  with  practice, 
but  that  it  influences  practice?  This  was  its 
original  purpose.  ^It  is  the  function  of  ethics,' 
says  Aristotle,  ^  to  act,  not  only  to  theorize. '  ' ' 

Paulsen  refers  to  the  fact  that  Schopenhauer 
takes  a  different  view : 

''All  philosophy,''  he  says,  *'  is  theoretical. 
Upon  mature  reflection  it  ought  finally  to  abandon 
the  old  demand  that  it  become  practical,  guide 
action,  and  transform  character,  for  here  it  is  not 
dead  concepts  that  decide,  but  the  innermost 
essence  of  the  human  being,  the  demon  that  guides 
him.  It  is  as  impossible  to  teach  virtue  as  it  is  to 
teach  genius.  It  would  be  as  foolish  to  expect  our 
moral  systems  to  produce  virtuous  characters  and 
saints  as  to  expect  the  science  of  aesthetics  to 
bring  forth  poets,  sculptors  and  musicians. ' ' 


LEGAL  ETHICS  21 

To  this  view  Paulsen  replies : 

*^I  do  not  believe  that  ethics  need  be  so  faint- 
hearted. Its  first  object,  it  is  true,  is  to  under- 
stand human  strivings  and  modes  of  conduct, 
conditions  and  institutions,  as  well  as  their  effects 
upon  individual  and  social  life.  But  if  knowledge 
is  capable  of  influencing  conduct — which  Schopen- 
hauer himself  would  not  deny — it  is  hard  to 
understand  why  the  knowledge  of  ethics  alone 
should  be  fruitless  in  this  respect.  .  .  .  Moral 
instruction,  however,  can  have  no  practical  effect 
unless  there  be  some  agreement  concerning  the 
nature  of  the  final  goal — not  a  mere  verbal  agree- 
ment, to  be  sure,  but  one  based  upon  actual  feel- 
ing. ...  It  will  be  the  business  of  ethics  to 
invite  the  doubter  and  the  inquirer  to  assist  in  the 
common  effort  to  discover  fixed  principles  which 
shall  help  the  judgment  to  understand  the  aims 
and  problems  of  life.'' 

What  is  here  said  concerning  the  usefulness  of 
an  investigation  of  fixed  ethical  principles  has 
application  to  a  consideration  of  what  rules  of 
conduct  should  prevail  in  the  legal  profession. 
The  high  social  purpose  of  the  profession,  its 
beneficial  function,  and  the  limitations  upon  its 
action  that  should  be  self-enforced  in  order  to 
make  the  calling  an  advantage  and  not  a  detriment 
to  the  public  weal,  should  be  understood.    Indeed, 


22  ETHICS  IN  SERVICE 

the  profession  of  the  law,  if  it  serves  its  high 
purpose,  and  vindicates  its  existence,  requires  a 
double  allegiance  from  those  who  have  assumed 
its  obligations,  first,  a  duty  toward  their  clients, 
and  second,  a  duty  toward  the  court.  And  though 
"the  two  sometimes  seem  to  conflict,  they  must  be 
reconciled  in  the  way  which  will  best  promote 
the  effective  administration  of  justice  and  the 
peace  of  society.  The  path  to  be  followed  in 
achieving  this  golden  mean  in  the  intricacies  of 
professional  relations  is  not  as  manifest  as  the 
rule  of  honesty  and  morality  in  ordinary  life. 
The  great  problem  of  government  that  is  never 
completely  solved  and  that  is  changing  with 
changing  conditions  is  how  to  reconcile  the  pro- 
tection of  individual  rights,  helpful  to  the  pursuit 
of  happiness  and  the  welfare  of  society,  with  the 
necessary  curtailment  of  those  rights  and  free- 
dom, by  governmental  restriction,  to  achieve  the 
same  object.  So  the  adjustment  of  the  duties  of 
the  lawyer  toward  his  client  and  toward  the  court 
in  the  interest  of  society,  are  not  always  easily 
distinguishable  and  an  attempt  to  make  them 
clear,  therefore,  is  justified. 

An  understanding  between  the  client  and  his 
representative  that  remuneration  is  a  proper 
incident  to  their  relation  insures  a  greater  confi- 
dence in  the  activity  and  devotion  of  his  lawyer 
to   his  interest   on   the   part   of  the   client   and 


LEGAL  ETHICS  23 

stimulates  industry  and  sincere  effort  on  the  part 
of  the  lawyer.  It  is  far  better  that  the  employ- 
ment on  a  pecuniary  basis  should  be  understood 
by  all  men,  by  the  courts  and  by  the  parties,  than 
that  some  secret  arrangements  should  exist  un- 
known to  the  court  and  the  opposing  party.  But 
it  is  said  that  to  give  to  counsel,  skilled,  learned 
and  familiar  with  the  arts  of  advocacy  and  the 
preparation  of  cases,  a  pecuniary  motive  to  make 
the  worse  appear  the  better  reason,  necessarily 
leads  him  to  an  attempt  to  influence  the  court 
against  a  just  result.  For  since  one  or  the  other 
conclusion  must  be  unjust,  one  of  the  paid  attor- 
neys arguing  the  cause  before  the  court  must  be 
arguing  for  the  unjust  side  and  in  favor  of  wrong. 
Hence,  it  is  claimed,  the  system  of  paid  advocacy 
must  in  every  case  tend  to  an  effort  on  one  side 
or  the  other  to  pervert  justice  and  mislead  the 
judges  into  inequity  and  wrong. 

It  may  be  agreed  that  if  there  were  not  certain 
limitations  upon  the  means  which  counsel  may 
take  to  maintain  the  justice  of  their  clients'  cause, 
if  they  were  justified  in  suborning  witnesses,  and 
coaching  them  to  testify  to  an  unfounded  state  of 
facts,  if  they  were  permitted  to  misstate  the 
e\ddence  after  it  has  been  adduced,  if  it  were 
regarded  as  proper  for  them  to  accept  employ- 
ment in  the  prosecution  of  a  cause  which  they 
knew  to  be  brought  only  for  a  wrong  purpose  and 


24  ETHICS  IN  SERVICE 

without  any  just  foundation,  or  if  in  a  civil  cause 
they  were  retained  to  make  a  defence  which  they 
were  advised  was  false  and  wrong,  then  it  might 
be  that  advocacy  under  such  freedom  from  limi- 
tation would  not  aid  the  judges  in  avoiding  wrong 
conclusions  and  unjust  judgments.  But  there  are 
limitations  upon  the  duty  of  counsel  to  their 
clients.  There  are  also  limitations  upon  a  law- 
yer's action  which  he  cannot  violate  without  a 
breach  of  his  duty  to  the  court  of  which  he  is  an 
officer  and  to  the  public  interest  in  the  mainte- 
nance of  the  proper  administration  of  justice. 
We  find,  therefore,  that  the  goal  to  be  reached  in 
reference  to  the  ethical  duty  of  an  attorney  in  the 
discharge  of  the  functions  assigned  to  him  by 
the  law,  is  the  reconciliation  of  his  duty  to  his 
client,  with  his  duty  to  the  court.  To  mark  out 
this  line  in  advance  is  easier  than  to  determine 
each  special  duty  in  a  concrete  way,  yet  neither 
is  free  from  difficulty  and  each  requires  a  calm 
and  clear  understanding  of  the  function  of  counsel 
as  an  instrument  in  the  machinery  of  justice. 
This  is  the  main  object  of  legal  ethics.  It  covers 
other  fields  and  is  important  in  those  fields,  but  no 
other  is  of  such  primary  importance. 

Courts  sit  to  hear  controversies  between  parties 
over  facts  and  law.  Rules  of  procedure  are  for 
the  purpose  of  reducing  the  issues  of  fact  and  law 
in  such  controversies  to  a  form  as  narrow  and 


LEGAL  ETHICS  25 

concrete  as  possible.  Men  wlio  are  able  to  present 
a  clear  statement  of  the  evidence  and  who  are 
learned  in  the  principles  of  the  law  and  their 
application  to  the  facts  as  they  are  developed  are 
in  a  position  to  assist  the  judge  to  a  quick  and 
thorough  understanding  of  the  exact  question 
which  he  is  to  decide.  The  real  entliusiasni  of 
advocacy  which  is  necessarily  developed  ))y  the 
relation  of  attorney  and  client  would  dou])tless 
have  a  tendency  to  mislead  the  court  if  exerted 
in  behalf  of  one  side  only,  but  where  both  sides 
are  represented,  where  the  same  earnestness  in 
the  proceeding  of  each  side  is  present,  it  is  the 
best  method  within  human  ken  to  reach  a  sound 
conclusion  both  as  to  the  facts  and  as  to  the  law. 
No  one  who  has  had  experience  on  the  Bench  in 
reaching  judicial  conclusions  and  w4io  has  there- 
after been  obliged  in  an  executive  position  to  reach 
important,  and  it  may  be  final,  conclusions  upon 
questions  involving  both  fact  and  law,  can  fail  to 
recognize  and  acknowledge  the  pow^erful  influence 
for  justice  that  honorable  and  learned  members 
of  the  law  exert  in  the  causes  which  they  present 
to  a  court.  The  counsel  w^ho  argues  the  losing 
side  of  a  case  contributes  quite  as  much  to  the 
assistance  of  the  court  as  the  successful  advocate. 
The  friction  of  counsePs  argument  against  coun- 
sel's argument  develops  every  phase  of  possible 
error  in  a  conclusion  and  thereby  enables  a  just, 


26  ETHICS  IN  SERVICE 

intelligent,  acute  and  experienced  court  to  see 
clearly  what  is  the  right  which  should  be  embodied 
in  its  judgment. 

The  practical  value  of  argument  by  paid 
counsel  on  both  sides  is  shown  in  many  ways. 
In  the  first  place,  it  is  well  understood  in  weighing 
legal  precedents  that  there  is  little  authority  in 
the  decision  of  a  court  which  has  been  reached 
mthout  the  benefit  of  the  argument  of  counsel. 
In  some  states,  courts  are  required  to  answer  ques- 
tions from  the  legislature  as  to  the  constitution- 
ality of  proposed  laws.  The  best  authorities  hold 
that  opinions  given  under  such  circumstances  are 
merely  advisory,  since  they  lack  opposing  argu- 
ments made  by  counsel  whom  the  spirit  of 
professional  advocacy  arouses  to  industry  in  the 
search  for  precedent.  They  go  so  far  as  to  say 
that  answers  so  given  should  not  conclude  the 
same  court  in  a  litigated  case  arising  subse- 
quently. An  earnest  and  commendable  desire  to 
win  leads  the  counsel  to  search  not  only  libraries 
but  his  own  brain  for  the  strongest  reasons  that 
he  can  summon  upon  which  to  base  a  judgment 
in  behalf  of  his  client.  Why  is  it  that  a  great  Bar 
makes  a  great  court!  Though  it  may  seem  a 
truism,  I  repeat,  it  is  because  the  great  Bar  fur- 
nishes to  the  court  all  the  reasons  that  can 
possibly  be  urged  in  each  case  and  enables  it  to 
select  from  among  all  the  reasons  developed  by 


LEGAL  ETHICS  27 

the  ingenuity  and  intense  interest  of  men  skilled 
in  the  law. 

Counsel  ought  to  decline  to  conduct  a  civil 
cause  or  to  make  a  defence  when  convinced 
that  it  is  intended  merely  to  harass  the  opposite 
party  or  to  work  oppression.  His  appearance  in 
court  should,  therefore,  be  deemed  equivalent  to 
an  assertion  on  his  honor  that  in  his  opinion  his 
client's  case  is  a  debatable  one  and  one  proper 
for  judicial  determination.  He  should  know  that 
under  a  proper  code  of  ethics,  no  lawyer  is  obliged 
to  act  either  as  adviser  or  as  advocate  for  every 
person  who  may  wish  to  become  his  client;  that 
he  has  the  right  to  decline  employment,  and  that 
each  lawyer  on  his  own  responsibility  must  decide 
what  business  he  will  accept  as  counsel,  what 
causes  he  mil  bring  into  court  for  plaintiffs,  and 
what  suits  he  will  contest  in  court  for  defence. 
The  court  knows  that  the  responsibility  for  bring- 
ing questionable  suits  or  for  urging  questionable 
defences,  is  the  lawyer's  responsibility.  He  can 
not  escape  it  by  urging  as  an  excuse  that  he  is  only 
following  his  client's  instruction.  The  judge 
knows  that  no  honorable  la^wer  would  coach  a 
witness  to  testify  falsely,  and  that  in  dealing  with 
the  court  each  lawyer  is  required  to  act  with 
entire  candor  and  fairness  in  the  statements  upon 
which  he  invokes  its  action.  The  judge  knows 
that  it  would  not  be  candid  or  fair  for  the  lawyer 


28  ETHICS  IN  SERVICE 

knowingly  to  misquote  the  contents  of  a  paper, 
the  testimony  of  a  witness,  the  argument  of 
opposing  counsel,  the  language  of  a  decision,  or 
the  wording  of  a  text-book.  He  may  fairly  rely 
on  a  lawyer  not  to  cite  a  decision  that  he  knows 
has  been  overruled,  or  a  statute  that  he  knows 
has  been  repealed.  He  may  properly  rely  on  the 
counsel's  not  asserting  a  fact  that  has  not  been 
proven. 

Yet  he  knows  that  lawyers  owe  entire  devotion 
to  the  interest  of  the  client,  and  warm  zeal  in  the 
maintenance  of  his  rights  and  that  they  will  exert 
their  utmost  ability  lest  anything  be  taken  or  be 
withheld  from  him,  save  by  the  rules  of  law, 
legally  applied.  He  knows  that  counsel  has  the 
right  to  proceed  in  the  view  that  his  client  is 
entitled  to  the  benefit  of  every  remedy  and 
defence  authorized  by  the  law  of  the  land  and 
that  the  la^vyer  is  expected  to  assert  every  such 
remedy  or  defence.  But  it  is  steadfastly  to  be 
borne  in  mind  that  the  great  trust  to  the  lawyer 
is  to  be  formed  within  and  not  mthout  the  bounds 
of  the  law.  The  office  of  a  lawyer  does  not  permit, 
much  less  does  it  demand  of  him,  violation  of 
law  or  any  manner  of  fraud  for  any  client.  He 
must  obey  his  own  conscience  and  not  that  of  his 
client.  These  limitations  are  binding  upon  the 
lawyer  as  a  sworn  officer  of  the  court,  and  com- 
pliance with  them  is  the  true  reconciliation  of  the 


LEGAL  ETHICS  29 

primary  duty  of  fidelity  to  the  client,  with  the 
constant  and  ever  present  duty  owing  to  the 
minister  of  justice  in  the  person  of  the  judge. 
These  statements  of  the  duty  of  the  lawyer  to  the 
court  in  the  advocacy  of  causes  and  in  the  pres- 
entation of  his  client's  case,  are  taken  from  the 
Code  of  Legal  Ethics,  which  was  approved  by  the 
American  Bar  Association.  I  think  that  all 
lawyers  and  judges  will  agree  that  when  lawyers 
live  up  to  them,  the  danger  of  injustice  from  the 
enthusiasm,  skill  or  eloquence  of  their  advocacy 
is  quite  remote. 

I  don't  mean  to  say  that  lawyers  do  not  differ 
in  the  force  of  their  statements,  in  their  logical 
faculty,  in  their  method  of  arranging  arguments, 
in  their  fluency  and  in  the  cogency  with  which 
they  present  the  cause  of  their  respective  clients. 
Of  course  the  man  who  is  fortunate  enough  to 
engage  the  abler  lawyer  enjoys  the  advantage  of 
those  gifts  with  which  nature  has  endowed  his 
representative,  but  that  element  of  inequality 
can  hardly  be  eliminated  from  the  administration 
of  justice.  It  has  more  weight  in  a  jury  trial  than 
it  has  before  a  court,  for  the  lawyers  before  a 
court  are  matching  their  acuteness  and  learning 
not  alone  with  the  counsel  for  the  other  side,  but 
with  the  cold  scrutiny  of  a  calm,  intellectual  and 
judicial  mind,  trained  to  consider  argument,  and 


30  ETHICS  IN  SERVICE 

experienced  in  the  elimination  of  the  irrelevant, 
the  emotional  and  the  illogical. 

The  jury  system,  though  somewhat  crude  and 
not  always  certain,  has  advantages  that  outweigh 
its  possibility  of  injustice  in  the  judicial  system 
of  a  free  government  among  a  free  people.  It  is 
important  that  the  people  shall  have  confidence 
in  the  courts,  and  it  is  important  that  they  shall 
feel  that  they  may  themselves  be  a  part  of  the 
judicial  machinery.  The  value  of  popular  con- 
fidence in  the  verdict  of  a  jury  selected  at  random 
from  a  community  is  great  enough  to  offset  any 
tendency  to  error  that  may  at  times  arise  from 
the  undue  influence  of  a  jury  advocate  uphold- 
ing one  side  of  the  controversy  before  them. 
If  the  jury  is  misled  by  the  histrionic  eloquence 
of  counsel  so  that  it  clearly  violates  justice  in  its 
verdict,  the  court  may  always  set  aside  its  deci- 
sion and  give  a  new  trial.  Moreover,  in  any 
properly  adjusted  system,  the  judge  should  be 
able  to  clear  the  atmosphere  of  any  false  emotion 
that  counsel  may  have  created.  He  can  remind 
the  jury  in  his  charge  that  they  are  judges,  who 
may  not  indulge  their  emotions  or  their  preju- 
dices. He  should  follow  closely  the  argument  of 
counsel  to  the  jury  in  order  that  his  charge  may 
clear  up  the  evidence  by  inviting  the  attention  of 
the  jury  to  the  weakness  of  proof  at  critical  points 
of  the  cause,  or  by  pointing  out  either  the  bias 


LEGAL  ETHICS  31 

of  witnesses  or  their  opportunity  or  lack  of  it  for 
observation,  thereby  eliminating  those  phases  of 
the  controversy  that  the  earnestness  of  counsel 
may  have  seized  upon  to  divert  the  attention  of 
the  jury  from  the  real  issue. 

I  have  recently  heard  an  arraignment  of  our 
present  judicial  system  in  the  trial  of  causes  by 
a  prominent,  able  and  experienced  member  of  the 
Boston  Bar.  (I  am  glad  to  call  him  a  friend.  I 
value  him  highly  as  such.)  He  ascribes  what  he 
calls  the  growing  lack  of  confidence  in  the  justice 
and  equity  of  litigation  in  the  courts  to  the  funda- 
mental error  in  their  procedure.  He  feels  that 
the  procedure  now  in  vogue  authorizes  and  in 
fact  requires  counsel  to  withhold  facts  from  the 
court  which  would  help  the  cause  of  justice  if 
they  were  brought  out  by  his  own  statement.  To 
remedy  this  he  suggests  that  all  counsel  should 
be  compelled  to  disclose  any  facts  communicated 
to  them  by  their  clients  which  would  require  a 
decision  of  the  case  against  the  clients.  He 
contends  further  that  the  rules  of  procedure, 
which  exclude  hearsay  evidence,  and  prevent  the 
jury  from  hearing  many  facts  which  business  men 
regard  as  important  evidence,  make  it  difficult 
to  reach  the  truth  which  is  essential  to  justice. 

I  set  out  this  view  as  a  possible  basis  for  a 
discussion  of  the  grounds  for  popular  criticism 
of  the  courts.    To  require  the  counsel  to  disclose 


32  ETHICS  IN  SERVICE 

the  confidential  communications  of  his  client  to 
the  very  court  and  jury  which  are  to  pass  on  the 
issue  which  he  is  making,  would  end  forever  the 
possibility  of  any  useful  relation  between  lawyer 
and  client.  It  is  essential  for  the  proper  presenta- 
tion of  the  client  ^s  cause  that  he  should  be  able 
to  talk  freely  with  his  counsel  without  fear  of 
disclosure.  This  has  always  been  recognized  and 
has  acted  as  a  most  salutary  restriction  on  the 
conduct  of  counsel.  No  litigants,  or  intending 
litigants,  would  employ  counsel  if  the  latter  were 
to  assume  the  duty  of  extracting  from  their  clients 
all  their  innermost  thoughts  with  a  view  to  reveal- 
ing them  to  the  court.  The  useful  function  of 
lawyers  is  not  only  to  conduct  litigation  but  to 
avoid  it,  where  possible,  by  advising  settlement  or 
withholding  suit.  Thus,  any  rule  that  interfered 
with  the  complete  disclosure  of  the  client's  inmost 
thoughts  on  the  issue  he  presents  would  seriously 
obstruct  the  peace  that  is  gained  for  society  by 
the  compromises  which  the  counsel  is  able  to 
advise. 

The  objection  to  the  exclusion  of  hearsay 
evidence  is  equally  unfounded.  Its  uses  are  said 
to  be  threefold,  to  convince  in  affairs  of  the  world, 
to  serve  as  the  basis  of  action  for  business  men, 
and  to  prevent  opportunity  for  false  witness. 
Yet  it  is  not  admissible  in  a  court  of  justice  to 
prove  or  disprove  either  a  cause  or  a  defence. 


LEGAL  ETHICS  33 

The  rules  of  evidence  have  been  worked  out  by 
centuries  of  experience  of  courts  in  jury  trials, 
and  are  admirably  adapted  to  avoid  the  danger 
of  error  as  to  fact.  I  fully  agree  that  in  American 
courts  the  trial  judges  have  not  been  entrusted 
with  as  wide  discretion  in  the  matter  of  admitting 
or  rejecting  evidence  as  they  should  have,  and 
judgments  have  been  reversed  on  technical  errors 
in  admitting  testimony  which  should  have  been 
affirmed.  As  time  goes  on,  however,  the  rule 
against  hearsay  evidence,  instead  of  losing  its 
force,  is  demonstrating  its  usefulness.  The  error 
and  injustice  that  are  committed  in  the  public 
press  by  inaccurate,  garbled  and  sometimes  false 
statements  of  facts  are  increased  in  their  injurious 
effect  by  the  wider  publication  that  newspapers 
have  today,  and  the  requirement  that  when  a  fact 
is  to  be  proven  in  court  it  should  be  proven  by 
those  who  have  a  personal  knowledge  of  it,  is  one 
of  the  most  wholesome  and  searching  tests  of 
truth  that  the  whole  range  of  adjective  law  fur- 
nishes. The  opportunity  for  cross-examination, 
for  finding  out  the  bias  of  the  witness,  the  advan- 
tage or  disadvantage  of  his  point  of  observation, 
the  accuracy  or  inaccuracy  in  his  recollection  of 
the  details  of  what  he  saw,  are  all  means  of  reach- 
ing the  real  truth  that  the  introduction  of  hearsay 
evidence  would  entirely  exclude. 

It  is  now  more  than  fifteen  years  since  this 


34  ETHICS  IN  SERVICE 

country  was  following  with  bated  breath  the  judi- 
cial investigation  of  the  charges  against  Captain 
Dreyfus  for  treason  in  having  sold  secrets  of  the 
French  War  Office  to  Germany.  Under  the  civil 
law  procedure,  there  is  little,  if  any,  limitation 
upon  the  kind  of  evidence  which  can  be  intro- 
duced to  sustain  the  issue  on  either  side,  and  the 
rule  against  hearsay  evidence  does  not  prevail. 
The  shock  given  to  the  whole  community  of  the 
United  States  by  the  character  of  evidence 
received  to  help  the  court  determine  the  Dreyfus 
issue,  was  itself  enough  to  show  that  the  confi- 
dence of  the  public  in  the  justice  of  the  rule 
against  hearsay  evidence  had  grown  rather  than 
diminished  with  years. 

Yet  I  am  far  from  saying  that  we  may  not  have 
improvement  in  our  laws  concerning  testimony 
in  court.  The  protection  of  those  accused  of 
crime  contained  in  some  of  our  constitutional 
restrictions  may  be  too  great.  The  charge  against 
the  administration  of  justice  in  the  present 
system  is  that  it  is  nothing  but  a  game  of  wits, 
of  cunning,  and  of  concealment,  promoted  by  the 
rules  of  procedure.  I  think  this  characterization 
is  most  unjust  and  most  unwise  because  it  aids 
the  attack  on  a  valuable  and  indispensable  insti- 
tution without  suggesting  any  real  security  for 
such  evils  and  defects  as  there  are.  An  experience 
of  many  years  in  the  trial  of  all  sorts  of  causes 


LEGAL  ETHICS  35 

as  lawyer  and  judge  and  in  framing  a  judicial 
system  convinces  me  that  the  present  method  of 
hearing  causes  is  correct.  The  enthusiastic 
advocacy  of  counsel  when  they  are  properly 
restrained  as  above  suggested,  and  the  rules  of 
evidence  adapted  to  winnowing  out  the  false  from 
the  true,  are  admirably  adapted  to  bringing  about 
right  results. 

It  is  also  asked  whether  members  of  the  Bar 
live  up  to  these  rules  restraining  their  enthusiasm 
and  limiting  their  proper  conduct  in  the  advocacy 
of  their  clients*  causes.  One  can  reply  that 
counsel  differ  in  that  regard,  but  that  generally 
such  rules  are  fairly  well  observed.  The  earnest- 
ness of  advocacy  often  blinds  them  to  the  pro- 
prieties and  the  requirements  of  candor  and 
fairness.  They  fall  into  the  same  errors  that 
their  clients  do,  though  with  a  better  knowledge 
of  their  duties  in  this  regard.  They  share  what 
has  been  characteristic  of  our  entire  people  in  the 
last  two  decades.  The  minds  of  the  great  majority 
have  been  focused  on  business  success,  on  the 
chase  for  the  dollar,  where  success  seems  to  have 
justified  some  departure  from  the  strict  line  of 
propriety  or  fairness,  so  long  as  it  has  not 
brought  on  criminal  prosecution  or  public  denun- 
ciation. 

More  than  this,  the  tendency  of  legislatures,  too 
often  controlled  by  lawyers   engaged  in   active 


36  ETHICS  IN  SERVICE 

practice,  has  been  to  distrust  judges  and  to  take 
away  from  them  the  power  to  control  in  the  court 
room,  as  they  do  in  the  English  and  Federal 
courts.  This  has  had  a  tendency  to  transfer  to 
counsel  greater  discretion  in  respect  to  their  con- 
duct of  cases  and  greater  opportunity  to  depart 
from  ethical  rules  with  impunity  in  the  somewhat 
reckless  spirit  of  the  times.  The  hampered  power 
of  the  court  to  prevent  the  misconduct  of  counsel 
in  many  western  states  has  not  been  conducive  to 
certainty  of  justice  nor  has  it  been  of  a  character 
to  strengthen  public  confidence  in  just  results. 
We  find  the  bitterest  attacks  upon  the  adminis- 
tration of  justice  in  those  jurisdictions  in  which 
the  people  and  the  legislatures  have  themselves 
laid  the  foundation  for  the  very  abuses  they 
subsequently  criticise  by  taking  away  the  power 
of  the  judge. 


CHAPTER  III 
THE    EXECUTIVE    POWER 

I  HAVE  been  introduced  at  a  great  many  places 
by  the  exuberant  chairman  of  a  committee  who 
referred  to  the  fact  that  he  was  about  to  introduce 
a  gentleman  who  exercised  the  greatest  power  in 
the  world.  While  the  power  of  the  President 
may  be  very  great  as  compared  with  the  power 
of  rulers  of  other  countries,  I  can  testify  that 
when  you  are  exercising  it,  you  don't  think  of  its 
extent  so  much  as  you  do  of  its  limitations.  I 
think  a  study  of  the  relative  power  of  the  King 
of  England,  the  President  of  France,  the  Emperor 
of  Germany,  the  King  of  Italy,  the  Emperor  of 
Austria  and  the  Emperor  of  Russia  might  in- 
volve a  very  interesting  investigation.  I  am  not 
sufficiently  familiar  with  the  power  of  those 
executive  heads  to  speak  on  the  subject,  though  I 
do  know  something  of  the  power  of  the  King  of 
England.  In  England  and  all  of  her  colonies  they 
have  a  so-called  responsible  government.  The 
English  King  is  said  to  reign  and  not  to  rule, 
while  the  actual  ruler  is  the  Premier,  who  com- 
bines executive  and  legislative  power  by  virtue 


38  ETHICS  IN  SERVICE 

of  his  position  as  head  of  the  controlling  party 
in  Parliament.  When  the  legislative  majority- 
fails  him,  he  goes  out  of  office.  It  is  a  govern- 
ment responsible  both  for  legislation  and  for 
executive  work. 

With  us,  as  you  know,  the  President  is  a  per- 
manent officer  for  four  years.  It  is  quite  possible 
that  he  may  be  elected  as  President  at  the  same 
time  that  a  Congress  hostile  to  him  is  put  into 
power.  Such  was  the  case  when  Mr.  Hayes  was 
elected,  and  indeed  when  Mr.  Cleveland  was  first 
elected  there  was  a  majority  against  him  in  the 
Senate.  It  happens  more  frequently,  however, 
that  at  the  end  of  two  years  a  majority  of  the 
opposing  party  is  elected  to  a  Congress  at  the 
mid-term  election.  Our  method  has  been  criticised 
as  rigid  and  unresponsive  to  change  in  popular 
opinion,  but  I  venture  to  think  that  it  has  some 
advantages  over  the  English  one.  It  may  be  good 
for  a  country  to  have  an  occasional  rest  from 
legislation,  to  let  it  digest  what  reformers  have 
already  gotten  on  its  statute  book,  and  the  period 
when  the  President  differs  from  Congress  offers 
such  an  opportunity  for  test  and  rest.  We  have 
rests  in  music,  which  are  necessary  to  a  proper 
composition,  and  I  do  not  see  why  we  should  not 
have  rests  in  politics. 

I  think,  however,  that  we  might  advantageously 
give  greater  power  to  the  President  in  the  matter 


THE  EXECUTIVE  POWER  39 

of  legislation.  One  of  the  difficulties  about  a 
Congress — I  say  it  with  deference  to  that  body — 
is  that  it  does  not  know  enough  about  the  executive 
facts  which  ought  to  control  legislation  in  the 
course  of  an  efficient  government.  The  introduc- 
tion of  cabinet  officers  on  the  floor  of  the  House 
and  the  floor  of  the  Senate  to  urge  legislation  on 
the  one  hand,  and  to  point  out  the  defects  of 
proposed  legislation,  on  the  other  hand,  would 
furnish  the  necessary  element.  This  would,  of 
course,  make  it  requisite  that  cabinet  officers 
should  be  able  to  look  after  themselves  on  their 
feet.  They  would  have  to  know  their  Department 
and  be  ready  to  answer  such  questions  as  are  put 
to  cabinet  officers  on  the  floor  of  Parliament. 

President  Wilson  has  inaugurated  the  policy 
of  delivering  his  message  to  Congress  personally. 
I  think  that  is  a  good  innovation.  A  Democrat 
could  have  made  it,  not  a  Republican.  Washing- 
ton had  to  go  to  Congress,  so  had  Adams,  but 
when  Jefferson  came  in  he  said,  ^^No,  that  is 
monarchical,  and  I  will  just  write  a  letter  to 
Congress,''  and  so  he  did.  Washington  went  once 
to  the  Senate  and  attempted  to  have  the  Senate 
concur  with  him  in  a  treaty  with  the  Indians.  He 
took  ^dth  him  General  Knox,  w^io  had  frequently 
dealt  with  Indians.  John  Quincy  Adams,  in  his 
diary,  describes  what  happened  as  he  learned  it 
from  a  member  of  the  Senate  at  that  time.    He 


40  ETHICS  IN  SERVICE 

says  that  in  the  conference,  Washington  found 
that  every  member  of  the  Senate  thought  he  knew 
more  about  the  Indian  treaty  than  General  Kiiox. 
Whereupon,  he,  the  father  of  our  country,  who 
has  been  represented  as  a  model  in  every  way, 
proved  that  he  was  no  such  ^* sissy*'  as  some  of 
his  historians  would  like  to  make  him  out.  His 
character  was  one  which  develops  into  grand 
proportions  when  you  study  it,  but  he  was  no 
mere  steel  engraving  of  copy-book  perfection. 
When  he  got  through  with  that  particular  session, 
he  turned  to  Knox  as  he  went  out,  and  said  he 
would  be  damned  if  he  would  come  to  the  Senate 
again.  Now  I  do  not  approve  of  profanity  gen- 
erally, but  somehow  or  other  I  rather  like  that 
story  because  it  lets  in  a  little  light  on  Washington 
and  shows  he  was  a  man  with  good  red  blood. 

The  first  power  of  the  President  that  I  wish 
to  consider  is  the  veto  power.  The  English  King 
has  it,  but  never  exercises  it,  i.e.,  he  has  not 
exercised  it  for  two  hundred  years.  If  he 
attempted  to  exercise  it  under  the  present 
British  Constitution,  he  would  shake  the  throne 
and  should  he  try  it  a  second  time  he  might  not 
have  a  throne  under  him.  The  President,  how- 
ever, has  the  veto  power  under  a  provision  of  the 
Constitution.  When  he  decides  to  differ  with  both 
Houses,  certain  members  of  demagogic  tendency 
rise  to  say  that  the  President  is  exercising  a  royal 


THE  EXECUTIVE  POWER  41 

prerogative  power,  or  that  he  is  going  back  to  the 
time  of  Imperial  Rome.  This  might  frighten  an 
inexperienced  man,  but  in  reality  it  is  mere 
bluster.  As  a  matter  of  fact,  the  President 
represents  the  people  in  a  much  wider  sense  than 
any  particular  Congressional  orator,  for  he  was 
elected  by  all  the  people,  while  the  Congressman 
was  chosen  by  only  one  district.  The  Constitution 
says  that  if  he  disapproves  of  an  act,  he  shall  send 
it  back  with  his  objections  and  it  enjoins  upon  him 
the  duty  of  examining  every  act  and  every  bill 
that  comes  to  him,  to  see  whether  it  ought  to  pass. 
He  vetoes,  therefore,  in  his  representative  capa- 
city, with  legislative  and  suspensive,  but  not 
absolute,  power.  A  vetoed  act  is  returned  to  the 
House,  and  if  its  supporters  can  succeed  in  getting 
a  two-thirds  majority  in  each  House,  the  bill  can 
still  pass  over  his  veto.  This  rarely  happens, 
however,  for  the  President  can  usually  give 
reasons  good  enough  to  command  the  vote  of  at 
least  the  one-third  of  one  House  that  is  necessary 
to  sustain  his  veto. 

The  second  great  control  exercised  by  the 
President  is  that  of  Commander-in-Chief.  This 
includes,  first  of  all,  his  command  over  the  army, 
which  is  complete.  He  can  send  the  army  where 
he  chooses  and  he  can  call  out  the  state  militia  to 
repel  invasion,  to  suppress  insurrection  and  to 
execute  the  laws,  if  the  army  or  militia  be  neces- 


42  ETHICS  IN  SERVICE 

sary.  Of  that  lie  alone  is  the  judge.  Early  in 
our  history  certain  state  judges  thought  that  the 
commander  of  the  militia  in  each  state  should 
pass  on  the  question  as  to  whether  an  emergency 
had  arisen  which  would  justify  the  President  in 
calling  out  the  militia,  but  that  was  one  hundred 
years  ago. 

To  illustrate  our  practice  now  in  regard  to  the 
execution  of  laws  with  the  aid  of  the  army,  there 
is  one  very  striking  instance  which  occurred 
within  my  memory.  Debs  organized  the  American 
Eailway  Union  in  order  to  take  the  American 
people  by  the  throat  and  say  to  them:  ''You 
shall  not  have  any  milk  for  your  babies,  you  shall 
not  have  any  food,  you  shall  not  have  anything. 
I  am  going  to  stop  every  railroad  in  the  country 
until  you  come  with  me  and  make  Pullman  pay 
his  men  what  I  think  they  ought  to  have,  and  what 
they  think  they  ought  to  have."  That  was  a 
secondary  boycott,  which  Mr.  Cleveland  said 
ought  to  be  suppressed.  Since  it  involved  the 
stoppage  of  mails  and  interstate  commerce,  the 
United  States  courts  issued  injunctions  to  prevent 
the  malcontents  from  continuing  their  work  of 
obstruction.  When  Debs 's  Union  defied  the  court 
injunction,  the  President  sent  General  Miles  out 
to  Chicago  with  a  military  force  to  suppress  that 
obstruction  to  the  United  States  laws. 

At  this   Governor  Altgeld  protested.    ''I  can 


THE  EXECUTIVE  POWER  43 

take  care  of  this ;  I  have  not  asked  you  to  bring 
these  men  in  here.  Under  the  Constitution  it  is 
necessary  for  the  governor  or  legislature  to  re- 
quest the  President  to  send  troops  in  to  suppress 
domestic  insurrection  which  the  governor  of  the 
state  cannot  control. '^ 

To  which  Mr.  Cleveland  and  Mr.  Olney  an- 
swered: ''That  is  true  where  the  insurrection 
does  not  relate  to  the  United  States  laws,  but 
where  there  is  an  obstruction  of  the  United 
States  law^s,  the  Supreme  Court  has  decided 
repeatedly  that  the  President  is  dealing,  not  mth 
state  territory,  but  with  the  territory  of  the 
United  States.  He  can  execute  the  laws  of  the 
United  States  on  every  foot  of  United  States  soil 
and  have  the  whole  army  enforce  them.''  And 
so  he  did. 

Another  indirect  power  of  the  President  as 
Commander-in-Chief  was  exhibited  in  a  most 
remarkable  way  during  the  Spanish  War.  We 
took  over  successively  Cuba,  Porto  Rico  and 
the  Philippines,  but  for  three  years  after  we  had 
annexed  the  Philippines,  Congress  took  no  action 
in  regard  to  any  of  them.  They  formed  territory 
ceded  to  us  by  virtue  of  the  Treaty  of  Paris  and 
Congress  thought  the  Philippines  were  a  poker 
that  was  a  little  bit  hot  for  it  to  handle.  The 
responsibility  for  them,  therefore,  fell  upon  the 
President,  and  as  Commander-in-Chief  he  intro- 


44  ETHICS  IN  SERVICE 

duced  a  quasi-civil  government,  appointing  a  civil 
governor  and  commission,  whom  he  authorized  to 
pass  laws — subject  to  veto  of  the  Secretary  of 
War — and  to  enforce  them.  He  thus  carried  on 
a  complete  government  in  Porto  Rico,  Cuba  and 
the  Philippines  under  his  power  as  Commander- 
in-Chief  until  Congress  became  sufficiently  ad- 
vised to  enact  needed  legislation  for  their  govern- 
ment. Cuba  was  turned  over  to  her  people,  a 
Republic  was  set  going.  Then  after  several  years, 
circumstances  made  it  necessary  for  us  to  step  in 
and  take  Cuba  again.  They  had  gotten  into  a  row, 
as  they  frequently  do  in  those  Latin-American 
countries,  and  they  were  having  a  revolution. 

When  we  first  let  Cuba  go,  we  made  what  was 
called  the  Piatt  Amendment  to  the  Cuban  Treaty, 
suggested  by  Senator  Piatt  of  this  state.  That 
amendment  provided  for  the  restoration  of  order 
by  the  United  States  whenever  law  and  order 
were  disturbed  and  whenever  life,  liberty  and 
property  were  not  secure.  Mr.  Roosevelt,  there- 
fore, sent  me  down  to  Cuba  with  Mr.  Bacon  to  see 
if  we  could  not  adjust  the  matter.  When  we 
arrived,  we  found  twenty  thousand  revolutionist 
troops  outside  the  city  of  Havana.  President 
Palma  had  been  so  certain  of  peace  that  he  had 
made  no  provision  to  suppress  insurrections,  and 
these  troops  were  just  about  ready  to  march  into 
Havana  when  I  got  there.    I  went  out  to  stay  at 


THE  EXECUTIVE  POWER  45 

the  house  of  the  American  Minister  in  a  suburb 
just  between  the  lines,  and  we  did  what  we  could 
to  compose  the  situation.  In  those  countries  when 
they  have  a  revolution,  the  first  thing  they  do  is 
to  elect  generals.  The  next  thing  they  do  is  to 
determine  what  the  uniform  of  the  generals  shall 
be,  and  then  they  get  the  guns  and  last  of  all  they 
organize.  President  Palma  became  discouraged 
and  resigned  so  that  I  had  to  proclaim  myself 
Provisional  Governor  of  Cuba.  The  Piatt  Amend- 
ment said  that  the  United  States  could  go  into 
Cuba  to  preserve  order;  but  the  question  was 
whether  the  President  had  the  authority  to  go  in 
without  authorization  by  a  resolution  of  Congress. 
I  always  thought  that  he  had  and  Congress 
seemed  to  agree  to  it.  So  we  went  in,  established 
a  provisional  government,  passed  a  good  election 
law,  held  an  election  and,  at  the  end  of  a  year, 
turned  back  the  government  to  the  Cubans,  where 
it  now  is. 

The  President  has  not  the  power  to  declare 
war.  Congress  has  that  power ;  but  if  a  foreign 
nation  invades  our  country,  the  President  must, 
without  awaiting  such  declaration,  resist  and  use 
the  army  and  navy  for  that  purpose.  It  is,  there- 
fore, possible  for  us  to  actually  get  into  war  before 
Congress  makes  a  formal  declaration.  That  is 
what  happened  in  the  Civil  War.  The  Southern 
states  seceded  and  Mr.  Lincoln  had  war  on  his 


46  ETHICS  IN  SERVICE 

hands  before  Congress  could  declare  it.  The 
President  thereupon  declared  a  blockade  of  the 
Southern  ports  and  the  question  then  came  up  as 
to  whether  it  was  a  legal  blockade  so  that  prizes 
might  be  taken  as  in  a  naval  war.  Our  war  vessels 
had  captured  merchant  vessels  trying  to  run  the 
blockade,  had  taken  them  into  prize  courts,  and 
had  sold  them  there,  distributing  the  proceeds 
among  themselves.  The  owners  fought  the 
proceedings  and  these  suits,  called  ^^The  Prize 
Cases,''  were  carried  to  the  Supreme  Court  of 
the  United  States.  The  court  held  that  while 
Congress  under  the  Constitution  had  sole  power 
to  declare  war,  nevertheless,  actual  war  might 
follow  mth  all  its  legal  consequences  if  a  nation 
invaded  our  country  or  if  such  an  insurrection 
arose  as  that  which  had  just  taken  place  in  the 
Civil  War. 

Let  me  give  you  an  example  of  presidential 
authority  exercised  Th  pursuance  of  his  constitu- 
tional duty  to  execute  the  laws^^^en  when  Con- 
gress passes  no  law  on  th^^^tibject-matter.  The 
Canal  Zone  was  acquired  by  a  treaty  with 
Panama  that  followed  its  recognition — a  recog- 
nition made  with  such  promptness  that  it  has 
since  attracted  some  criticism.  Congress  passed 
a  law  that  the  President  should  have  power  to 
govern  that  country  for  a  year,  but  failed  to 
renew  the  grant  of  power.     The  question  arose 


THE  EXECUTIVE  POWER  47 

then  as  to  what  was  to  be  done  in  the  Canal  Zone. 
A  prior  act  covering  the  building  of  the  Panama 
Canal  required  the  President  to  build  it  through 
a  commission,  but  that  was  all.  He  might  build  it 
anywhere,  either  in  Nicaragua  or  Panama,  but  he 
had  no  express  governmental  power  over  the 
Canal  territory.  He  had,  however,  to  see  that  the 
laws  were  executed,  which  meant  that  he  must 
look  after  every  piece  of  territory  belonging  to 
the  United  States  and  safeguard  it  in  the  interest 
of  the  people.  It  seemed  to  us,  therefore,  to  be 
within  the  executive  authority,  until  Congress 
should  act,  to  continue  the  government  of  the 
Zone,  maintain  courts,  execute  men  who  committed 
murder,  and  discharge  all  the  political  functions 
required  to  constitute  a  law-abiding  community. 
Let  me  give  you  another  instance  of  the  Presi- 
dent's exercising  a  law  that  Congress  did  not 
pass.  Sarah  Althea  Hill  thought  she  was  married 
to  Senator  Sharon,  at  least  she  said  she  thought 
so.  Senator  Sharon  was  a  rich  man.  She  wished 
to  share  it.  So  she  brought  in  the  State  courts  of 
California  a  suit  for  divorce  and  alimony  against 
the  senator  and  exhibited  a  letter  purporting 
to  have  been  written  by  the  senator  admitting 
the  marriage.  She  got  into  a  great  deal  of 
litigation  and  employed  as  her  lawyer  Judge 
Terry.  Senator  Sharon  then  brought  suit  in  the 
United  States  Court  in  California  to  have  this 


48  ETHICS  IN  SERVICE 

letter  declared  a  forgery  and  delivered  up  to 
him.  Justice  Field  of  the  United  States  Supreme 
Court  heard  the  case  on  the  circuit.  Judge  Terry, 
who  had  been  on  the  Supreme  Court  of  California 
in  its  early  days  and  had  served  on  the  same 
court  with  Judge  Stephen  J.  Field,  was  a  noted 
duelist  and  was  known  to  have  killed  one  man 
in  a  duel.  Mr.  Justice  Field  had  been  appointed 
from  the  California  court  to  be  a  Supreme  Justice 
of  the  United  States  by  Mr.  Lincoln  during  the 
war.  Pending  the  litigation,  Senator  Sharon  died 
and  soon  thereafter  the  association  of  Miss  Hill 
and  Judge  Terry  as  client  and  counsel  developed 
into  a  warmer  relation  and  they  became  man  and 
wife.  She  was  a  very  violent  woman,  as  Judge 
Terry  was  a  violent  man,  and  made  threatening 
demonstrations  in  court  when  Justice  Field  gave 
the  judgment  against  her.  Justice  Field  sentenced 
Mrs.  Terry  to  thirty  days'  imprisonment  for  con- 
tempt because  in  her  fury  she  insulted  the  Court 
and  attempted  to  commit  violence  upon  the  Judge. 
The  bitterness  of  feeling  between  the  Terrys  and 
Justice  Field  was  really  heightened  by  the  old 
association  between  Judge  Terry  and  Justice 
Field  as  judicial  colleagues.  The  Terrys  fre- 
quently declared  their  intention,  when  occasion 
offered,  to  kill  Judge  Field.  Word  of  this  came 
to  the  Attorney-General,  then  W.  H.  H.  Miller, 
in  Mr.  Harrison's  administration.     He  notified 


THE  EXECUTIVE  POWER  49 

the  United  States  Marshal  to  direct  a  deputy  to 
follow  Justice  Field  in  his  Circuit  work  and 
protect  him  against  any  threatened  attack. 

As  Justice  Field  was  proceeding  north  from 
Los  Angeles  to  San  Francisco  to  hold  court  there, 
he  got  out  for  breakfast  at  Fresno.  Unfortunately 
the  Terrys  reached  the  same  station  on  another 
train  at  the  same  time.  Justice  Field  and  Neagle, 
the  deputy  marshal,  got  out  of  the  train,  went 
into  the  restaurant  and  sat  down.  When  Judge 
and  Mrs.  Terry  came  in  and  Mrs.  Terry  saw 
Justice  Field,  she  ran  out  to  the  car  to  get  a 
revolver  she  had  left  in  her  satchel  by  an  over- 
sight. In  the  meantime  Judge  Terry  went  up  to 
Justice  Field,  denounced  him  and  struck  him  from 
behind.  Thereupon  Neagle  arose,  saying,  ^*I  am 
an  officer,  keep  off,''  but  Judge  Terry  continued 
to  assault  Justice  Field.  Neagle  said  he  thought 
Judge  Terry  reached  for  a  knife.  At  any  rate, 
Neagle  shot,  and  Terry  fell  dead  at  the  feet  of 
Justice  Field. 

Neagle  was  at  once  indicted  by  a  state  jury  for 
murder.  He  went  into  the  Federal  Court  and 
got  a  writ  of  habeas  corpus,  asking  to  be  released 
on  the  ground  that  he  was  discharging  a  duty 
under  the  government  of  the  United  States. 
Judge  Sawyer  granted  the  writ  and  released 
Neagle.  The  state  of  California  took  the  case  to 
the  Supreme  Court  of  the  United  States.     The 


50  ETHICS  IN  SERVICE 

court  divided,  with  the  Chief  Justice  and  Justice 
Lamar  dissenting.  The  majority  of  the  court  held, 
Mr.  Justice  Miller  pronouncing  the  judgment, 
that  the  President  was  justified  by  the  duty  im- 
posed upon  him  by  the  Constitution  to  see  that 
the  laws  were  faithfully  executed.  Although 
there  was  no  specific  law  on  the  statute  book  con- 
ferring upon  the  President  authority  to  direct 
Neagle  to  take  the  action  he  did,  there  was  an 
implied  obligation  on  the  part  of  the  government 
to  protect  its  judges  in  discharging  their  duty 
from  the  violence  of  disappointed  litigants,  and 
this  obligation  was  a  law  which  it  was  the  duty 
of  the  President  to  see  executed.  The  President, 
therefore,  has  the  right  through  his  Attorney- 
General,  who  is  the  finger  of  his  hand,  to  direct 
an  officer  of  the  United  States  to  protect  to  the 
uttermost  a  justice  while  on  judicial  duty,  even 
if  it  necessitates  killing  an  assailant. 

I  cannot  tell  you  all  the  officers  of  the  United 
States — internal  revenue  men,  customs  men,  post- 
office  men,  immigrant  inspectors,  public  land  men, 
reclamation  men,  marine  hospital  men — certainly 
150,000  in  number,  who  are  subject  to  the  direc- 
tion of  the  President.  In  the  executive  work 
under  this  head,  he  wields  a  most  far-reaching 
power  in  the  interpretation  of  Congressional 
acts.  A  great  many  statutes  never  come  before 
the  court.    The  President  or  his  officers  for  him 


THE  EXECUTIVE  POWER  51 

have  finally  to  decide  what  a  statute  means  when 
it  directs  them  to  do  something.  Many  statutes 
contain  a  provision  that  under  that  statute,  regu- 
lations must  be  made  by  executive  officers  in  order 
to  facilitate  their  enforcement.  This  is  quasi- 
legislative  work.  The  situation  in  regard  to  the 
present  income  tax  illustrates  the  necessity  for 
regulations.  You  will  recognize  that  regulations 
adopted  by  the  President  and  his  subordinates  are 
sometimes  necessary  to  straighten  out  law.  If 
you  desire  to  study  a  maze  or  look  into  a  laby- 
rinth, I  commend  you  to  the  present  income  tax 
law. 

Then  often  Congress  relies  upon  the  discretion 
of  the  President  to  accomplish  such  tremendous 
things  as  in  the  Panama  Canal.  It  directed  the 
President  to  build  the  Canal.  It  remained  for 
him  to  appoint  all  the  persons  engaged  in  the 
work,  and  he  became  responsible  for  every  one 
of  them.  Another  notable  instance  of  the  reliance 
of  Congress  upon  the  President  occurred  in  the 
Spanish  War,  when  it  appropriated  $50,000,000 
to  be  allotted  at  his  discretion. 

Yet  it  seems  to  me  that  a  curtailment  of  the 
small  duties  now^  imposed  on  the  President  might 
well  be  made.  The  number  of  his  appointments, 
for  instance,  might  well  be  lessened.  The  Presi- 
dent ought,  of  course,  to  appoint  his  Cabinet,  the 
Supreme  Court,  ambassadors,  ministers,  generals 


52  ETHICS  IN  SERVICE 

and  admirals,  but  beyond  that  I  think  appoint- 
ments ought  to  be  made  without  bothering  the 
President  about  them.  We  have  introduced  a 
Civil  Service  reform  system  with  a  Civil  Service 
Commission,  and  I  trust  that  the  matter  of  taking 
these  subordinate  officers  out  of  politics  will  be 
pressed  generally  as  a  much-needed  reform. 

Is  the  position  occupied  by  a  postmaster  of 
sufficient  importance  to  justify  the  President  in 
bothering  with  his  appointment  when  he  has  such 
a  problem  as  the  Mexican  situation  on  his  hands  1 
We  are  coming  to  the  time  when  there  are  great 
complicated  duties  to  perform  under  the  govern- 
ment. We  have  departed  from  the  Jefferson 
view,  and  we  now  think  that  the  government  can 
do  a  great  many  things  helpfully,  provided  it  has 
experts  to  do  them.  Is  it  not  entitled  to  the  best 
men  to  do  these  things!  Yet  how  are  experts 
obtainable  unless  they  are  selected  to  permanent 
positions  by  those  who  are  looking  for  experts  and 
not  looking  for  men  who  exercise  influence  at  the 
polls? 

I  recommended  to  Congress  four  times,  that  is, 
in  each  annual  message,  that  it  enable  me  to 
put  these  men  under  the  Civil  Service  law  and 
in  the  classified  service;  but  it  did  not  do  it, 
and  why?  Because  all  local  officers  now  have  to 
be  confirmed  by  the  Senate.  That  power  of  con- 
firmation gives  a  hold  on  the  Executive  and  each 


THE  EXECUTIVE  POWER  53 

Senator  and  each  Congressman  wants  to  name 
the  postmaster  and  the  other  local  officers  in  his 
district  or  state.  The  consequence  is  that  Con- 
gressmen do  not  wish  the  Senate  to  lose  the  power 
of  confirmation.  They  believe  this  personal 
patronage  to  be  a  means  of  perpetuating  their 
own  tenure.  As  a  matter  of  fact,  this  is  not  the 
case.  Few  men  help  themselves  politically  in  the 
long  run  through  the  use  of  patronage.  It  is  a 
boomerang.  Some  few  manage  to  make  it  useful, 
but  generally  when  a  man  secures  an  appointment 
for  a  henchman,  as  the  saying  is  in  Washington — 
and  it  is  a  very  true  one — he  makes  one  ingrate 
and  twenty  enemies.  The  result  is  that  after  he 
has  served  a  term  or  two,  he  begins  to  find  those 
aspiring  constituents,  w^hom  he  did  not  appoint, 
rising  like  snakeheads  to  strike  him  down. 

Therefore,  if  Congressmen  really  had  wisdom 
and  looked  ahead,  they  would  rid  themselves  of 
responsibility  for  these  appointments,  would 
abolish  the  necessity  for  confirmation  by  the 
Senate,  and  would  thus  enable  the  President  to 
classify  them  under  the  Civil  Service  law  and 
merit  system.  But  we  have  made  progress  and 
I  am  not  discouraged  about  it.  Ultimately  we 
shall  get  the  Senate  to  consent  to  give  up  that 
power,  though  at  present  the  Democratic  majority 
in  the  two  Houses  is  fierce  against  such  a  sugges- 
tion,   and    quite    naturally    so,    for,    while    the 


54  ETHICS  IN  SERVICE 

Republican  party  has  been  in  control  for  sixteen 
years,  the  trend  into  office  has  been  Republican 
and  the  Democrats  wish  to  change  it.  That  is 
human  nature,  and  I  am  merely  regretting,  not 
condemning  it.  Perhaps  if  the  Republicans  come 
back  into  power  after  four  years,  they  will  not 
be  quite  so  hungry  as  the  Democrats  were  after 
sixteen  years  of  famine,  and  we  may  have  a  little 
less  wolfish  desire  to  get  at  the  offices. 

The  time  taken  up  in  the  consideration  of  minor 
appointments  by  executive  officers,  the  President 
and  Cabinet  officers  especially,  is  a  great  waste 
and  no  one  can  know  the  nervous  vitality  that 
can  be  expended  upon  them  until  he  has  had 
actual  experience. 

Of  course  they  lead  to  some  amusing  expe- 
riences, for  there  is  nothing  which  gives  such  a 
chance  for  the  play  of  human  impulse  as  office- 
seeking.  I  remember  having  a  lady  come  into  my 
office  when  I  was  Secretary  of  War.  Her  boy  had 
passed  the  examination  for  West  Point,  but  a 
medical  board  had  examined  him  and  found  that 
his  chest  did  not  measure  enough  for  his  height. 
She  came  in  to  urge  me  to  waive  that  defect.  I 
explained  to  her  the  necessity  for  great  care  in 
the  appointment  of  army  officers,  because  if,  after 
being  commissioned,  they  had  any  organic  trouble, 
they  were  disqualified  for  further  discharge  of 
their  duty,  and  would  be  retired  on  three-fourths 


THE  EXECUTIVE  POWER  55 

pay  without  rendering  any  real  service  to  the 
government.  She  listened  with  gloom  to  my 
explanation,  and  asked  me  to  look  at  the  papers. 
I  took  them  in  her  presence  and  went  through 
them.  I  found  that  the  young  man  had,  on  the 
basis  of  100,  made  93  per  cent  in  all  his  mental 
examinations.  That  isn't  done  by  every  candi- 
date for  West  Point,  and  there  is  no  reason  why 
we  should  not  have  brains  as  well  as  brawn  in 
army  officers.  So  I  looked  again  at  the  measure- 
ments and  concluded  he  was  a  man  we  ought  not 
to  lose.  I  told  her :  ^  ^  Madam,  I  did  not  have  so 
much  difficulty  in  filling  out  my  chest  measure- 
ment. Your  boy  shows  such  general  intelligence 
that  I  have  no  doubt  he  will  have  sense  enough  to 
pursue  a  regimen  that  will  make  him  sufficiently 
enlarge  his  chest  measurement,  so  I  am  going  to 
waive  the  objection  and  let  him  in.''  She  had  not 
expected  so  quick  a  decision  in  her  favor,  and  was 
taken  back  a  little.  She  hesitated  a  minute,  and 
then,  with  an  angelic  smile,  she  said  to  me,  ^^Mr. 
Secretary,  you  are  not  nearly  so  fat  as  they  say 
you  are." 

Then  I  had  another  experience.  A  lady  in 
Washington,  whose  husband  had  some  political 
influence,  came  and  labored  with  me  for  six  weeks 
or  more  to  appoint  her  son  to  a  position.  She 
secured  the  aid  of  Senators  and  Congressmen  in 
formidable  number  and  came  with  them  to  see 


56  ETHICS  IN  SERVICE 

that  they  spoke  with  emphasis.  The  place  was 
one  requiring  technical  qualification,  and  follow- 
ing the  recommendation  of  the  head  of  the  Bureau, 
I  appointed  somebody  else.  I  then  received  a 
letter  from  the  mother,  saying  that  I  was  most 
ungrateful,  since  I  declined  to  make  her  a  happy 
woman  as  I  could  have  done  by  a  turn  of  my  hand. 
She  complained  further  that  she  had  labored  with 
her  state  delegation  and  got  all  the  votes  for 
an  administration  bill  in  which  I  was  especially 
interested  and  this  was  the  way  I  had  rewarded 
her. 

When  you  get  a  letter  like  that,  the  first  thing 
you  do  is  to  think  how  you  can  be  severe  with  a 
person  who  has  committed  an  impropriety,  or 
even  been  a  little  impertinent.  Then  you  may 
compose  an  answer.  Then  if  you  are  wise,  you 
will  put  the  letter  in  a  drawer  and  lock  the  drawer. 
Take  it  out  in  the  course  of  two  days — such  com- 
munications will  always  bear  two  days'  delay  in 
answering — and  when  you  take  it  out  after  that 
interval,  you  will  not  send  it.  That  is  just  the 
course  I  took.  After  that,  I  sat  do^vn  and  wrote 
her  just  as  polite  a  letter  as  I  could,  telling  her 
I  realized  a  mother's  disappointment  under  such 
circumstances,  but  that  really  the  appointment 
was  not  left  to  my  mere  personal  preference,  that 
I  had  to  select  a  man  with  technical  qualifications, 
and  had,  therefore,  to  follow  the  recommendation 


THE  EXECUTIVE  POWER  57 

of  the  head  of  tlie  Bureau.  I  expressed  the  hope 
that  her  son  would  go  on  to  accomplish  what  she 
had  hoped  for  him  in  the  position  which  he  then 
had.  That  mollified  her  and  she  wrote  me  a  note 
saying  she  was  sorry  she  had  written  as  she  had. 

But  the  appointment  I  sent  in  was  not  confirmed 
at  once  and  after  an  interval  I  received  a  letter 
which  purported  to  come  from  her  husband, 
though  it  was  in  the  same  handwriting  as  all  the 
others.  I  was  therein  advised  that,  due  to  the 
nervous  prostration  that  had  followed  her  dis- 
appointment in  this  case,  she  had  to  take  to  her 
bed  and  had  developed  a  most  serious  case  of 
cancer  of  the  stomach.  Would  I  not  restore  her 
to  health  by  withdrawing  the  first  name  and 
replacing  it  by  her  son^s?  I  had  to  write  another 
letter,  this  one  to  the  husband,  to  say  that  I  hoped 
the  diagnosis  would  prove  to  be  inaccurate,  that 
I  sympathized  wdth  him  in  the  sorrow  he  must 
have  in  the  serious  illness  of  his  wife,  but  that  it 
was  impossible  to  withdraw  the  name  sent  in. 
The  man  whom  I  appointed  was  confirmed,  and 
wdthin  two  days  after  I  received  that  letter,  we 
gave  a  musicale  at  the  White  House.  The  first 
two  people  to  greet  Mrs.  Taft  and  me  were  this 
husband  and  wife,  though  the  wife  had  so  recently 
been  in  articulo  mortis. 

Another  great  power  of  the  President  is  his 
control   of  our   foreign   relations.     In   domestic 


58  ETHICS  IN  SERVICE 

matters,  the  Federal  government  shares  every 
field,  executive,  judicial  and  legislative,  with  the 
states,  but  in  foreign  affairs,  the  whole  govern- 
mental control  is  with  the  President,  the  Senate 
and  Congress.  The  states  have  nothing  to  do 
with  it.  The  President  initiates  a  treaty  and  the 
Senate  confirms  it.  The  Senate,  however,  cannot 
initiate  a  treaty,  the  President  alone  can  do  that. 
Congress'  powers  to  declare  war  and  regulate  our 
foreign  commerce  are  its  chief  powers  in  respect 
to  our  foreign  relations.  So  that,  except  in  rati- 
fying treaties,  in  regulating  commerce  and  in 
declaring  war,  the  President  guides  our  whole 
foreign  policy. 

Through  the  State  Department  he  conducts  all 
negotiation  and  correspondence  with  other  gov- 
ernments and  according  to  the  Constitution  he 
receives  ambassadors  and  foreign  ministers. 
Now  you  might  possibly  think  that  that  meant 
only  that  he  must  have  a  flunky  at  the  White 
House  to  take  their  cards — but  it  means  a  good 
deal  more.  He  appoints  ambassadors  and  minis- 
ters to  other  countries  and  instructs  them.  He 
receives  the  diplomatic  representatives  from  other 
countries  and  does  business  with  them.  He 
construes  treaties  and  asserts  the  rights  of  our 
government  and  our  citizens  under  them.  He 
considers  and  decides  the  rights  of  other  govern- 
ments and  their  subjects  in  a  way  which  practi- 


THE  EXECUTIVE  POWER  59 

cally  binds  our  government  and  people.  And  in 
order  to  receive  ambassadors  and  ministers,  be 
must  determine  whetber  tbey  bave  been  properly 
accredited,  so  tbat  tbey  bave  tbe  proper  autbority 
to  act  for  tbe  country  tbey  claim  to  represent. 

Wben  tbere  is  a  dispute  as  to  wbat  person  is 
tbe  cbief  executive  of  a  foreign  country  and  tbere- 
fore  entitled  to  send  an  ambassador  or  minister, 
tbe  President  must  decide  it.  In  otber  words,  be 
alone  can  exercise  tbe  power  of  recognition.  How 
important  a  power  tbis  is,  w^e  may  know  from 
our  recent  experiences  witb  Mexico,  for  President 
Wilson,  by  witbbolding  recognition  from  General 
Huerta,  was  able  to  render  bis  longer  tenure  as 
cbief  executive  impossible. 

In  our  foreign  relations  it  is  often  tbe  Presi- 
dent's duty  to  formulate  tbe  national  claim  of 
sovereignty  over  territory  wbose  ownersbip  is  in 
dispute.  Tbis  is  a  political  question  and  bis 
decision  or  claim  in  regard  to  it  is  taken  as  final 
by  tbe  Supreme  Court. 

In  tbe  Fur-Seal  Controversy,  Mr.  Blaine  took 
tbe  position  tbat  our  jurisdiction  reacbed  out  over 
tbe  Bering  Sea.  Tbe  question  was  contested  in 
tbe  Supreme  Court  by  tbe  Britisb  and  tbe  Cana- 
dian governments.  Tbe  Supreme  Court  said: 
*^We  cannot  determine  tbis.  It  is  a  political 
question  and  must,  tberefore,  be  decided  by  tbe 
President  tbrougb  bis  Secretary  of  State.''    We 


60  ETHICS  IN  SERVICE 

then  submitted  the  issue  to  an  international 
tribunal,  and  the  decision  was  against  us. 

Another  great  power  of  the  President  is  the 
power  of  pardons  and  reprieves.  This  is  not  to 
be  determined  by  rules  of  law  nor  indeed  by- 
absolute  rules  of  any  kind  and  must,  therefore, 
be  wielded  skilfully  lest  it  destroy  the  prestige 
and  supremacy  of  law.  Sometimes  one  is  de- 
ceived. I  was.  Two  men  were  brought  before 
me,  both  of  whom  were  represented  as  dying. 
When  a  convict  is  near  his  end,  it  has  been  the 
custom  to  send  him  home  to  die.  So,  after  having 
all  the  surgeons  in  the  War  Department  examine 
them  to  see  that  the  statements  made  to  me  about 
them  were  correct,  I  exercised  the  pardoning 
power  in  their  favor.  Well,  one  of  them  kept  his 
contract  and  died,  but  the  other  seems  to  be  one 
of  the  healthiest  men  in  the  community  today. 

The  President  is  also  the  titular  head  of  a  party 
and  ought  to  have  a  large  influence  in  legislation. 
He  is  made  responsible  to  the  country  for  his 
party's  majority  in  Congress,  and  does  thereby 
have  some  voice  in  legislation.  Some  Presidents 
have  more  control  than  others,  but  all  Presidents 
find  as  the  patronage  is  distributed,  and  as  the 
term  goes  on,  that  the  influence  and  power  that 
they  have  over  legislation  rapidly  diminishes.  In 
fact,  when  there  are  no  more  offices  to  distribute 
and  somebody  else  comes  into  view  as  the  next 


THE  EXECUTIVE  POWER  61 

President,  the  authority  of  the  incumbent  becomes 
strictly  limited  to  his  constitutional  functions. 
All  of  this  tends  to  show  that  a  President  who 
seeks  legislative  changes  and  reforms  should 
begin  early. 

The  people  think  that  the  Presidency  gives  a 
man  an  opportunity  to  make  a  lot  of  personal 
appointments.  I  can  recall  some  of  these  personal 
appointments,  but  I  tell  you  they  are  very  few. 
There  are  certain  political  obligations  involving 
the  recognition  of  party  leaders  which  he  has  to 
take  into  consideration  with  reference  to  some 
appointments.  But  when  it  comes  to  purely 
personal  appointments,  one  can  count  them  on 
the  fingers  of  one  hand.  It  is  well  that  it  is  so. 
A  President  with  his  proper  sense  of  duty  finds 
many  men  in  office  whom  he  ought  to  let  continue 
and  the  question  of  friendship  for  others  can  play 
no  part  in  displacing  them. 

The  social  influence  of  the  President  in  Wash- 
ington is  not  much.  I  think  perhaps  it  might  be 
useful  if  it  were  a  little  more,  for  the  question  of 
precedence,  which  makes  everybody  outside  of 
Washington  laugh,  sometimes  becomes  a  very 
serious  matter.  As  the  French  ambassador  once 
said,  when  there  are  three  hundred  people,  they 
cannot  all  go  through  the  door  at  one  time. 
Somebody  has  to  go  first,  therefore  it  is  most 
important  to  ^  who  that  somebody  shall  be.    But 


62  ETHICS  IN  SERVICE 

nobody  in  Washington  has  the  authority  to  say. 
If  only  the  army  and  navy  were  concerned,  the 
matter  would  be  easy  enough,  because  they  are 
controlled  by  the  President  and  he  can  issue 
orders  that  they  must  respect,  but  with  civil 
officers  he  has  no  such  authority.  Congress  could, 
of  course,  provide  rules  of  social  and  official 
precedence,  either  by  legislation  or  executive 
order,  as  is  done  in  all  European  countries. 
But  here  such  a  proposal  would  be  laughed  out 
of  Congressional  halls,  though  it  would  be  a 
wise  measure  to  prevent  confusion,  unnecessary 
friction  and  heartburning. 

The  very  men  who  make  most  fun  of  such 
matters  and  profess  to  despise  their  consideration 
are  in  actual  practice  the  most  unreasonable  as 
to  their  own  places  at  functions.  The  House  of 
Representatives  is  supposed  to  be  the  embodiment 
of  democracy  and  contempt  for  social  distinctions, 
yet  of  all  the  people  in  the  world  who  have  made 
a  fuss  over  the  matter  of  precedence,  speakers  of 
the  House  of  Representatives  have  been  the  most 
insistent  on  their  proper  place  at  official  dinners. 
The  speaker  says:  ^^I  represent  the  body  of  the 
people  who  come  from  the  soil  and  the  people 
who  make  this  country.  Therefore,  I  decline  to 
sit  after  the  presiding  officer  of  the  Senate. ' '  An 
ambassador  says:  **I  am  the  personal  repre- 
sentative of  my  sovereign.     If  he  were  here  in 


THE  EXECUTIVE  POWER  63 

Washington,  he  would  sit  next  to  the  President.** 
The  Cabinet  officer  says:  ^^The  President  is  the 
head.  I  am  connected  with  him  as  Secretary  of 
War,  the  Cabinet  is  a  small  body  and  the  Senate 
is  a  large  body.  Therefore,  we  are  bigger  men 
than  the  Senate  and  we  ought  to  have  prece- 
dence.** In  fact,  the  head  of  a  scientific  bureau 
came  in  to  see  me  one  day  and  said,  ^ '  I  think  you 
ought  to  put  me  after  the  Supreme  Court.**  He 
even  filed  a  brief  with  me  on  the  subject,  to  the 
effect  that  **I  run  an  independent  department. 
The  judges  represent  the  judicial  branch,  and  the 
President  the  executive  branch,  and  the  heads  of 
the  two  Houses,  the  legislative  branch,  while  I 
represent  the  scientific  branch.**  Indeed,  the 
matter  of  procedure  is  not  such  a  joke  as  it  seems 
outside.  It  is  not  so  important  as  to  who  comes 
first  as  that  their  order  of  precedence  should  be 
once  determined. 

The  President  is  made  responsible  for  every- 
thing, especially  for  hard  times.  Of  course  his 
supporters  claim  credit  for  good  crops,  so  that 
perhaps  it  is  not  so  unfair  to  charge  him  with 
responsibility  for  bad  crops  and  for  everything 
else  that  happens  wrong  during  his  term.  Every 
President  strives  to  do  the  best  he  can  for  the 
country.  It  is  a  great  task,  one  of  the  heaviest 
in  the  world.  A  man  does  not  really  know,  until 
he  gets  out  of  the  office,  what  the  strain  is.    And, 


64  ETHICS  IN  SERVICE 

therefore,  knowing  that  he  is  struggling  to  do  the 
best  he  can,  while  he  may  differ  with  you,  while 
he  may  do  things  that  seem  to  you  absurd,  con- 
sider that  he  is  there,  elected  by  the  American 
people,  as  your  representative,  and  remember 
that  while  he  is  in  office  he  is  entitled  to  your 
respect.  Now,  don't  be  flippant  in  regard  to  him. 
Don't  think  it  shows  you  to  be  a  big  man  to 
criticise  him  or  speak  contemptuously  of  him. 
You  may  differ  with  his  policy,  but  always  main- 
tain a  profound  respect  for  a  man  who  represents 
the  majesty  and  the  sovereignty  of  the  American 
people. 


CHAPTER  IV 
THE  SIGNS  OF  THE  TIMES 

We  are  living  at  a  time  when  political  and  social 
conditions  are  a  bit  chaotic,  and  it  is  a  little  diffi- 
cult to  distinguish  between  the  symptoms  that  are 
ephemeral  and  those  which  are  permanent.  What 
we  must  do  is  to  try  to  make  things  better  and  to 
save  from  the  past  the  things  which  are  good. 
It  is  often  true  that  a  movement  that  is  excessive 
and  destructive  in  one  way,  ends  by  being  the 
basis  of  great  progress  after  reaction  from  its 
excesses  has  left  what  is  valuable  in  it. 

Our  American  Revolution,  which  we  are  accus- 
tomed to  regard  as  quite  important — and  it  was 
for  us — did  not  really  represent  a  great  world 
change  such  as  was  represented  in  the  French 
Revolution.  It  grew  out  of  a  very  unwise,  selfish 
colonial  policy  on  the  part  of  Great  Britain.  We 
were  right  and  wise  in  putting  it  through,  and  our 
ancestors  demonstrated  great  courage  and  great 
tenacity  in  fighting  it.  It  certainly  gave  us  inde- 
pendence and  an  opportunity  for  expansion  that 
we  should  not  otherwise  have  had.  But  the  pap 
that  we  have  been  brought  up  on  with  respect  to 


66  ETHICS  IN  SERVICE 

the  tremendous  outrages  which  Great  Britain  in- 
flicted on  us  was  sweetened  a  little  bit.  If  you 
would  see  the  other  side,  read  Trevelyan's 
^^  American  Kevolution/'  In  this  you  will  see 
that  while  the  right  was  certainly  with  us,  we  were 
not  quite  so  much  outraged  as  it  seemed  in  our 
earlier  childhood  studies.  The  American  Revo- 
lution did  as  much  good  for  England  as  it  did  for 
us,  because  it  taught  her  proper  colonial  policy, 
and  today  the  colonial  policy  of  Great  Britain  is 
one  of  the  greatest  instances  of  statesmanship  in 
history.  In  her  dealing  with  Canada,  with  Aus- 
tralia and  with  the  South  African  Republic,  she 
has  given  them  such  self-government  that,  far 
from  wishing  to  sever  the  bond  with  the  mother 
country,  they  cherish  it. 

The  French  Revolution  indicated  a  very  much 
more  important  movement  among  peoples.  It 
developed  awful  excesses.  The  wild  declarations 
and  extremes  practiced  by  the  Committee  of 
Safety  in  the  French  Revolution  were  revolting 
to  any  man  affected  by  ordinary  humane  consid- 
erations and  had  in  fact  a  remarkable  effect  in 
strengthening  conservatism  in  England.  Indeed, 
they  caused  the  issue  and  the  bitter  personal 
quarrel  between  the  one-time  warm  associates, 
Burke  and  Fox.  The  natural  result  of  those 
excesses  was  to  be  expected.  It  took  the  shape  of 
the  man  on  horseback.     The  imperial  control  of 


THE  SIGNS  OF  THE  TIMES  67 

Napoleon  led  the  French  people  into  a  military 
waste  of  strength  which  has  affected  the  French 
race  even  down  to  the  present  time.  Yet  Napoleon, 
by  building  up  his  Code  Napoleon,  and  by  spread- 
ing over  Europe  the  idea  that  the  people  were 
the  basis  of  government,  profoundly  affected 
political  conceptions  and  conditions.  There  fol- 
lowed a  reaction  in  the  Holy  Alliance,  which  was 
a  combination  to  maintain  the  Divine  Right  of 
Elings,  and  then  the  spirit  of  the  French  Revolu- 
tion reasserted  itself  in  1830.  In  fact  from  then 
on  until  now  the  movement  toward  more  and 
more  popular  government  has  gone  on  contin- 
uously in  France,  Germany,  Austria  and  else- 
where. It  is  spreading  today  even  more  widely 
than  it  ever  did  before,  and  every  country,  even 
Russia,  has  to  count  the  cost  with  respect  to  the 
will  of  the  people. 

When  I  went  through  Russia  after  the  Russian- 
Japanese  War,  I  met  one  of  the  leading  diplomats 
of  that  country  who  greeted  me  with,  ^^Well,  how 
do  you  like  it  r '  ''  How  do  I  like  what  V  I  asked. 
^^How  do  you  like  helping  Japan  to  lick  Russia  V 
Those  were  the  homely  expressions  that  he  used. 
To  which  I  replied,  ^'We  did  not  help  Japan  to 
lick  Russia. "  ' '  But, '  ^  he  said,  ^  ^  you  did  in  effect. 
Your  people  and  your  press  sympathized  and 
they  expressed  the  kindly  sympathy  that  counts 
for  so  much  at  such  a  time.''    ^'The  government 


68  ETHICS  IN  SERVICE 

cannot  control  our  people, '^  I  responded.  ^^They 
think  for  themselves  and  express  themselves  as 
they  see  fit.  We  cannot  control  the  press  in  our 
country,  but  we  have  observed  all  the  laws  of 
neutrality  with  respect  to  the  war,  and  if  some 
of  the  people  expressed  themselves  in  favor  of 
Japan,  it  was  only  because  they  were  in  favor  of 
the  under  dog  in  the  fight.*'  ^^Why  did  you  give 
upT*  I  inquired  further;  ^^You  were  getting 
stronger  and  stronger.*'  ^^Yes,'*  he  said,  '^we 
had  to  fight  at  the  end  of  a  5,000-mile,  single- 
track  railway,  but  handicapped  as  we  were,  we 
got  our  forces  out  there  ready  to  fight  and  we 
could  have  gone  in  and  beaten  the  Japanese.*' 
*'Why  didn't  you!"  I  asked.  *'Why  did  you 
make  peace!"  *'The  trouble  is,"  he  explained, 
^ '  we  were  living  on  a  volcano  at  home.  Our  people 
were  opposed  to  the  war,  and  we  did  not  go  on, 
lest  the  throne  would  be  a  forfeit."  This  is  only 
an  indication  that  even  in  the  country  that  is 
supposed  to  represent  the  most  absolute  of 
empires,  the  people  are  manifesting  a  control. 
The  Douma  was  given  too  much  power  at  first,  so 
that  universal  suffrage  was  necessarily  a  failure 
in  the  condition  of  the  people  at  that  time.  But 
the  Douma  now  is  gradually  acquiring  useful 
power  and  in  the  course  of  the  next  twenty-five 
or  fifty  years  Russia  will  probably  have  a  popular 
constitutional  government. 


THE  SIGNS  OF  THE  TIMES  69 

We  have  had  democracy  in  this  country  for 
one  hundred  and  twenty-five  years,  or  indeed  for 
two  hundred  and  twenty-five  years.  It  is  now 
proposed  to  have  more  democracy  to  supply  the 
present  defects  of  our  existing  democracy.  This 
is  one  phase  of  the  present  situation  that  I  wish 
to  discuss.  Another  is  the  spread  of  the  fraternal 
spirit,  the  desire  of  one  to  help  another,  the  actual 
improvement  and  increase  in  the  brotherhood  of 
man  which  we  are  seeing  in  society,  and  a  third  is 
trades-unionism,  its  essence  and  what  is  to  be 
hoped  for  or  feared  from  it. 

If  you  will  read  a  book  like  Chamberlain  on 
**The  Foundations  of  the  Nineteenth  Century,'^ 
especially  the  preface,  which  is  written  by  a  man 
who  uses  a  better  style  than  Chamberlain,  you 
will  find  that  he  attempts  to  summarize  the 
progress  of  the  previous  eighteen  centuries  as  a 
predicate  for  the  strides  of  human  civilization 
in  the  nineteenth.  As  he  minimizes  the  effect  of 
one  century  and  then  another,  you  note  how  few 
centuries,  in  his  judgment,  play  any  part  in  the 
onward  march,  and  you  are  discouraged  as  to 
what  one  man  can  do  to  help  along  any  movement 
that  shall  really  be  world-mde  or  permanent. 

The  effect  is  much  the  same  upon  your  personal 
hope  of  accomplishing  some  good  in  the  world  as 
when  a  professor  of  astronomy  takes  you  over  to 
the  observatory,  lets  you  look  through  the  tele- 


70  ETHICS  IN  SERVICE 

scope,  tells  you  that  light  takes  something  like 
eight  minutes  to  come  the  95,000,000  miles  from 
the  sun  to  the  earth,  and  then  says  that  the  sun 
after  all  is  a  pretty  poor  thing  considered  in 
connection  with  what  other  suns  there  are.  When 
you  find  furthermore  that  some  stars  are  so  far 
distant  that  the  light  you  are  now  receiving  on 
your  retina  started  from  them  centuries  ago,  you 
say  to  yourself:  ^^Well,  what's  the  use?  If  we 
are  such  atoms  and  so  unimportant  in  the  general 
result,  what's  the  usef 

Still  if  you  study  Chamberlain's  history  of  the 
eighteen  centuries  you  will  find  that,  after  all,  the 
men  who  were  real  factors  in  the  world  civilization 
were  the  geniuses  who  were  able  to  interpret  and 
enforce  what  was  inchoate  in  the  minds  of  all  but 
had  no  definite  expression  and  led  to  no  useful 
action.  Each  atom  counts  something,  two  make 
a  molecule  and  the  world  is  made  up  of  them — at 
least  it  was  in  my  college  days.  Therefore,  what 
we  are  here  for  is  to  make  the  best  possible  effort 
to  help  along  the  general  weal,  and  it  is  no  excuse, 
because  we  cannot  play  a  large  part,  that  we 
should  play  no  part  at  all  and  should  feel  no  sense 
of  responsibility  for  what  we  can  do. 

What  then  of  conditions  of  civilization  in  our 
country  in  the  last  half -century  ?  The  Civil  War 
grew  out  of  a  great  moral  and  social  issue.  It 
was  a  moral  issue  on  the  part  of  the  North  and 


THE  SIGNS  OF  THE  TIMES  71 

a  social  issue  on  the  part  of  the  South.  Material 
considerations  were  subordinated.  After  the  war 
we  had  a  pretty  hard  time  in  getting  over  its 
immediate  effects.  The  panic  of  1873,  which 
prostrated  all  business,  was  the  result  of  the 
excesses  of  the  war,  the  overissue  of  legal  tender 
and  the  feverish,  unhealthy  expansion  that  fol- 
lowed. In  1878,  we  resumed  specie  payments. 
I  presume  no  country  in  the  world  ever  showed 
such  an  enormous  expansion  and  such  material 
growth  as  ours  between  1878  and  1907.  It  was 
shown  in  the  useful  inventions.  Steam  had  been 
invented  before,  but  it  was  increased  in  its  uses, 
and  electricity  was  made  the  tool  of  man.  Now 
it  is  easy  to  follow  that  kind  of  material  expan- 
sion. We  can  count  the  growth  in  wealth  and 
trace  the  effect  of  it  on  the  people,  for  they  all 
got  into  the  chase  for  the  dollar. 

In  the  West,  the  pioneer  spirit  was  so  strong 
that  they  were  glad  to  have  anything  in  the  way 
of  development  at  any  cost.  Counties  would  issue 
railroad  bonds  to  build  railroads  and  would  give 
the  bonds  to  the  railroads.  They  would  give 
franchises  of  all  sorts  and  do  everything  that 
they  thought  would  help  open  the  country.  There 
was  a  most  substantial  increase  in  the  average 
income,  and  the  average  comfort,  especially  in 
the  bodily  comfort,  of  everyone.  Have  you  ever 
thought  that  today  the  humblest  workman  has 


72  ETHICS  IN  SERVICE 

more  bodily  comfort  in  many  ways  than  Queen 
Elizabeth  or  even  George  III?  We  had  learned 
the  advantage  of  combination  in  machinery  and 
we  adopted  it  in  business. 

This  brought  about  great  combinations  of  plant 
and  capital  which  reduced  the  cost  of  producing 
commodities  necessary  to  man  to  a  price  never 
conceived  of  before.  I  do  not  wish  to  depreciate 
the  value  or  importance  of  improvement  in 
material  comfort.  When  you  hear  a  man  denounce 
it,  you  may  know  that  either  he  is  not  a  clear, 
calm  thinker,  or  else  he  is  a  demagogue.  Material 
growth  and  material  comfort  are  essential  for 
the  development  of  mental  and  spiritual  activities. 
The  result  of  this  combination  and  material 
expansion,  however,  was  to  create  great  corpora- 
tions which  began  to  get  control  of  things.  The 
same  spirit  of  combination  entered  into  politics 
and  we  had  machines  and  bosses  which  lent  their 
hand  to,  and  furnished  a  complacent  instrument 
for,  corporations.  Time  was  when  they  ordered 
delegates  in  a  convention  with  the  same  degree  of 
certainty  that  the  order  would  be  supplied,  as  they 
did  steel  rails  or  any  other  commodity.  That 
time  has  passed  and  why?  Because  the  danger 
of  plutocracy  forced  itself  on  the  people.  Leaders 
took  it  up  and  showed  it  to  them;  and  in 
the  last  ten  years  we  have  had  a  great  move- 
ment to  eliminate  corporate  and  money  control 


THE  SIGNS  OF  THE  TIMES  73 

in  politics.  Great  statutes  have  been  passed — the 
anti-trust  law,  the  interstate  commerce  law,  the 
statutes  against  the  use  of  contributions  from 
corporations  in  politics,  the  statutes  requiring 
the  showing  of  the  electoral  expenses,  have  all 
been  brought  about  in  response  to  a  popular 
demand. 

The  people  failed  to  scrutinize  before,  but 
now  that  they  are  aroused  and  have  taken  matters 
in  their  own  hands,  they  have  brought  about 
reform.  The  fact  that  he  is  supported  by  bosses 
is  now  generally  enough  to  defeat  a  man,  and  the 
charge  that  he  has  a  machine  with  him  is  enough 
to  interfere  with  his  electoral  success.  Organi- 
zation is  necessary  for  political  success;  even 
reformers  find  that  out  after  they  get  into 
politics,  but  today  there  is  an  unreasonable 
prejudice  against  it.  The  great  and  good  effect 
of  the  reform,  however,  is  that  corporations  are 
no  longer  in  politics.  Of  course  corruption  is  not 
all  gone,  but  it  is  largely  stayed,  and  there  is  no 
longer  any  chance  that  corporations  can  control 
as  they  did. 

But  the  leviathan  of  the  people  cannot  be 
aroused  in  this  way  and  his  movement  stopped 
at  the  median  line.  We  must  expect  unwise 
excess.  Sincere  reformers  have  reasoned  that 
because  we  had  the  representative  form  of  gov- 
ernment  during   this   corrupt   period,   it   is   the 


74  ETHICS  IN  SERVICE 

representative  form  of  government  which  is 
responsible.  Because  we  had  courts  during  the 
corrupt  period,  the  courts  are  responsible  for  the 
corruption.  Therefore  we  must  change  the  repre- 
sentative system  by  injecting  more  democracy 
into  it  and  we  must  change  the  courts  by  injecting 
more  democracy  into  them  and  require  the  people 
at  an  election  to  decide  cases  instead  of  judges  on 
the  Bench.  These  are  the  excesses  to  which  we 
trend. 

We  are  a  pretty  great  people.  We  admit  it. 
We  have  great  confidence  in  what  we  can  do,  and 
when  we  are  set,  neither  an  economic  law  drawn 
from  political  science  nor  experience  seems  a  very 
formidable  objection.  We  are  a  successful  people 
in  machinery,  and  so  we  take  our  analogy  for 
political  reforms  from  machinery.  We  found  that 
by  uniting  various  mechanical  elements  we  could 
make  machines  which  would  do  as  much  as  one 
hundred  or  one  thousand  men  in  the  same  time. 
So  we  think  that  if  we  are  only  acute  enough  to 
devise  a  governmental  machine  which  will  work 
without  effort  on  the  part  of  the  people,  we  can 
sit  at  home  while  elections  run  themselves  so  well 
that  only  what  the  good  people  desire  in  political 
action  will  necessarily  result.  We  want  the 
equivalent  of  what,  in  the  slang  of  practical 
mechanics,  w^e  call  a  fool-proof  machine,  because 
anybody  can  run  it  and  no  fool  can  interfere  with 


THE  SIGNS  OF  THE  TIMES  75 

its  normal  operation^  So  these  political  reformers 
are  hunting  a  corrupt-politician-proof  machine 
for  government.  It  does  not  and  cannot  exist. 
No  government  can  exist  which  does  not  depend 
upon  the  activity,  the  honesty  and  the  intelligence 
of  those  who  form  it.  The  initiative,  the  refer- 
endum and  the  recall  have  been  urged  and  in  many 
states  adopted,  as  a  machine  which  no  boss  or 
corrupt  politician  can  prevent  from  producing 
honest,  effective  political  results.  They  are  ex- 
pected to  reform  everything  and  those  who  doubt 
their  wisdom  are,  for  the  time  being,  in  the  minds 
of  many  enthusiasts,  public  enemies. 

The  representative  system,  on  the  contrary, 
recognizes  that  government,  in  the  actual  execu- 
tion of  governmental  measures,  and  in  the  actual 
detailed  preparation  of  governmental  measures, 
is  an  expert  matter.  To  attempt  to  devise  and 
adopt  detailed  legislative  measures  to  accomplish 
the  general  purpose  of  the  people  through  a  mass 
vote  at  a  popular  election  is  just  as  absurd  as  it 
would  be  for  all  those  present  at  a  town  meeting 
to  say,  ^'We  will  all  of  us  now  go  out  and  build  a 
bridge,  or  we  will  use  a  theodolite. '  ^  Thus  to  say 
that  by  injecting  more  democracy  you  can  cure 
the  defects  of  our  present  democracy  is  to  express 
one  of  those  epigrams  that,  like  many  of  its  kind, 
is  either  not  true  at  all  or  is  only  partly  true  and 


76  ETHICS  IN  SERVICE 

is  even  more  deceptive  than  if  it  were  wholly 
untrue. 

Take  the  power  of  appointment  in  executive 
work.  You  elect  officers,  choosing  men  of  char- 
acter, intelligence,  and  experience  for  a  few  great 
offices,  and  then  what  do  you  do  under  the  Federal 
Constitution  ?  You  turn  over  to  the  President  the 
appointment  of  great  officers  because  he  needs 
intelligence,  knowledge  and  skill  to  make  their 
selections. 

Consider  the  system  of  general  direct  primaries 
in  the  selection  of  judges.  There  is  a  ticket  at  the 
primaries  on  which  something  like  twenty  or 
thirty  lawyers  run  for  the  Supreme  Bench.  Some 
of  them  go  around  and  tell  the  electors  how  they 
will  decide  on  questions  after  they  get  in.  The 
qualifications  of  most  of  them  as  lawyers  and  as 
men  are  not  known  to  the  people.  Some  of  them 
are  prominent  because  they  have  been  in  the  head- 
lines of  newspapers  as  figuring  in  sensational 
cases.  Others  have  political  prominence  but  no 
public  experience  to  test  their  judicial  capacity. 
Do  you  think  this  method  of  selection  by  the 
people  would  lead  to  the  choice  of  a  learned, 
skilled  lawyer  with  that  experience,  courage  and 
fine  judicial  quality  that  are  to  make  him  a  great 
judge!  Of  course  it  would  not.  It  has  been  my 
duty  to  select  more  judges  in  a  term  of  four  years 
than  any  other  President,  and  I  have  had  to  look 


THE  SIGNS  OP  THE  TIMES  77 

into  and  compare  the  results  of  selection  of 
judicial  candidates  by  popular  general  primary 
and  by  convention,  so  that  I  know  what  I  am 
talking  about  when  I  say  that  the  primary  system 
has  greatly  injured  the  average  capacity  of  our 
elective  judiciary. 

Why  should  we  not  use  common  sense  in  matters 
of  government  just  as  we  use  common  sense  in 
our  own  business!  Why  should  we  be  afraid  to 
tell  the  people  that  they  are  not  fitted  to  select 
high  judicial  officers?  They  are  not.  You  know 
you  are  not.  You  could  not  tell  me  who  would 
be  good  judges  for  Connecticut,  or  for  any  state 
in  the  Union  where  you  happen  to  live  unless  you 
went  about  and  investigated  the  matter.  If  you 
are  put  in  a  position  of  responsibility,  you  have 
sense  enough  to  know  where  to  find  out  the  facts 
and  then  to  make  the  selection,  but  the  people  lack 
that  opportunity.  So  how  is  the  question  to  be 
solved  ?  By  electing  a  Chief  Executive  and  charg- 
ing him  with  the  responsibility  of  selecting  com- 
petent men  to  act  as  judges.  That  is  what  is 
meant  by  the  short  ballot. 

Reformers-for-politics-only  include  as  many 
vote-getting  planks  in  a  platform  as  they  can  get 
in  it  without  regard  to  their  consistency  or  incon- 
sistency. They  sometimes  combine  the  short 
ballot  with  the  initiative,  referendum  and  recall 
though  they  are  utterly  at  variance.     The  refer- 


78  ETHICS  IN  SERVICE 

endum  is  the  submission  of  every  issue  to  the 
people. 

The  short  ballot,  on  the  contrary,  means  putting 
up  one  or  two  men  whose  names  shall  not  encum- 
ber the  ballot.  Have  you  ever  seen  these  ballots  ? 
They  are  a  yard  long  and  a  yard  wide.  They 
have  a  hundred  and  twenty  names  on  them  and 
the  people  are  expected  to  make  a  selection.  They 
are  to  make  a  selection  of  ten  out  of  fifty  or  one 
hundred  names.  Why,  it  would  seem  to  be 
mathematically  demonstrable  that  that  is  absurd. 
But  when  some  men  get  into  politics  and  talk 
about  the  people,  it  seems  as  if  they  had  to  aban- 
don ordinary  logic.  I  am  just  as  much  in  favor  of 
popular  government  as  anybody,  but  I  am  in 
favor  of  popular  government  as  a  means  to  attain 
good  government,  not  in  order  to  go  upon  the 
stump  and  say,  ^^Vote  for  me  because  I  am  in 
favor  of  the  people.  The  people  are  all  wise  and 
never  make  a  mistake.'' 

Now  what  is  the  initiative?  In  practice,  it 
means  that  if  5  per  cent  of  the  electorate  can  get 
together  and  agree  on  a  measure,  they  shall 
compel  all  the  rest  of  the  electorate  to  vote  as  to 
whether  it  shall  become  law  or  not.  There  is  no 
opportunity  for  amendment,  or  for  discussion. 
The  whole  legislative  program  is  put  into  one  act 
to  be  voted  on  by  the  people.  Speakers  will  get 
up  and  claim  that  the  millennium  will  be  brought 


THE  SIGNS  OF  THE  TIMES  79 

about  by  some  measure  that  they  advocate.  Sup- 
pose it  is  voted  in?  It  never  has  had  the  test  of 
discussion  and  amendment  that  every  law  ought 
to  have.  I  am  not  complaining  of  the  movement 
that  brings  about  this  initiative  and  referendum, 
for  that  is  prompted  by  a  desire  to  clinch  the 
movement  against  corruption,  on  the  theory  that 
you  cannot  corrupt  the  whole  people  and  that  the 
initiative  and  referendum  mean  detailed  and 
direct  government  by  the  whole  people.  But  the 
theory  is  erroneous.  The  whole  people  mil  not 
vote  at  an  election,  much  less  at  a  primary.  When 
the  people  are  thus  represented  at  the  polls  by  a 
small  minority  there  is  nothing  that  the  politicians 
will  not  be  able  to  do  with  that  minority  when 
they  get  their  hands  in. 

This  is  still  a  new  movement,  for  which  we  have 
little  precedent  to  guide  us,  but  we  have  seen 
politicians  fit  their  methods  to  any  form  of  govern- 
ment. Their  chance  is  always  through  the  neglect 
to  vote  on  the  part  of  the  majority  of  the 
electorate  and  this  new  system  calls  out  fewer 
votes  than  ever. 

Now  what  is  the  referendum!  It  is  a  reference 
of  the  thing  proposed  by  the  initiative  to  the 
people  who  are  to  vote  on  it.  These  reformers- 
for-politics-only  are  never  content  to  acquire  a 
majority  of  the  electorate  vote  for  the  adoption 


80  ETHICS  IN  SERVICE 

of  the  measure  referred.  They  seem  to  love  the 
promotion  of  the  power  of  the  minority. 

What  answer  do  the  people  themselves  give 
with  reference  to  the  wisdom  of  the  referendum? 
At  many  elections  candidates  run  at  the  same 
time  that  questions  are  referred  to  the  people, 
and  what  is  the  usual  result  of  the  vote?  In 
Oregon,  where  they  have  tried  it  most,  and  where 
the  people  are  best  trained,  they  do  sometimes 
get  as  much  as  70  per  cent  of  those  who  vote  on 
candidates  to  vote  on  the  referendum;  but  gen- 
erally, as  in  Colorado,  the  vote  at  the  same  election 
upon  the  referendum  measures  is  not  more  than 
50  per  cent — sometimes  as  low  as  25  or  20  per 
cent — of  those  who  vote  for  candidates.  Why, 
in  New  York  they  were  voting  as  to  whether  they 
should  have  a  constitutional  convention,  and  how 
did  the  total  referendum  vote  compare  with  the 
total  electorate!  It  was  just  one-sixth  of  that 
total. 

They  have  tried  it  in  Switzerland.  We  get  a 
good  many  of  these  new  nostrums  from  that 
country.  They  said  in  Switzerland,  *^  These  men 
vote  for  candidates,  they  shall  vote  on  referen- 
dums. ' '  What  was  the  result  1  The  electors  went 
up  to  the  polls  and  solemnly  put  in  tickets.  When 
they  opened  the  ballots,  they  were  blanks.  What 
does  that  mean?  It  means  that  the  people  them- 
selves believe  that  they  do  not  know  how  to  vote 


THE  SIGNS  OF  THE  TIMES  81 

on  those  issues,  and  that  such  issues  ought  to  be 
left  to  the  agents  whom  they  select  as  competent 
persons  to  discuss  and  pass  upon  them  in  accord- 
ance with  the  general  principles  that  they  have 
laid  down  in  party  platforms.  In  Oregon,  at  the 
last  Presidential  election,  the  people  were  invited 
to  vote  on  thirty-one  statutes,  long,  complicated 
statutes,  and  in  order  to  inform  them,  a  book  of 
two  hundred  and  fifty  closely  printed  pages  was 
published  to  tell  them  what  the  statutes  meant. 

I  ask  you,  my  friends,  you  who  are  studious, 
you  who  are  earnest  men  who  would  like  to  be  a 
part  of  the  people  in  determining  what  their  policy 
should  be,  I  ask  you  to  search  yourselves  and 
confess  whether  you  would  have  the  patience  to 
go  through  that  book  of  two  hundred  and  fifty 
closely  printed  pages  to  find  out  what  those  acts 
meant?  You  would  be  in  active  business,  you 
would  go  down  to  the  polls  and  say,  ^^What  is  up 
today?"  You  would  be  told:  *'Here  are  thirty- 
one  statutes.  Here  are  two  hundred  and  fifty 
pages  that  we  would  like  to  have  you  read  in 
order  that  you  may  determine  how  you  are  to 
vote  on  them.  *  *    You  would  not  do  it. 

There  was  once  a  Senator  from  Oregon  named 
Jonathan  Bourne,  who  advocated  all  this  system 
of  more  democracy.  He  served  one  term  in  the 
Senate  and  then  sent  word  back  to  his  con- 
stituents that  he  was  not  coming  home  at  the  time 


82  ETHICS  IN  SERVICE 

of  the  primary.  He  said  that  he  was  not  on  trial, 
for  a  man  who  had  worked  as  hard  as  he  had  for 
the  people  could  not  be  on  trial.  Instead,  he  said, 
it  was  the  people  of  Oregon  who  were  on  trial,  to 
say  whether  they  appreciated  a  service  like  his. 
They  did  not  stand  the  test,  and  he  was  defeated 
at  the  primary.  Then  he  concluded  that  after  all 
he  would  have  to  forgive  them  and  take  pity  on 
their  blindness.  So  he  went  out  to  Oregon  and 
ran  on  another  ticket  to  give  them  the  benefit  of 
his  service.  But  still  they  resisted  the  acid  test. 
He  himself  went  to  the  polls  to  vote  at  this  elec- 
tion where  there  were  thirty-one  statutes  to  be 
approved  or  rejected.  How  many  of  the  thirty- 
one  submitted  to  him  do  you  suppose  he  voted 
for?  The  newspapers  reported  him  as  admitting 
that  he  voted  on  just  three,  and  the  other  twenty- 
eight  he  left  to  fate.  Now,  gentlemen,  is  not  that 
a  demonstration?  Is  not  that  a  reductio  ad  ahsur- 
dum  for  this  system  of  pure  and  direct  democracy? 


CHAPTER  V 
MORE  SIGNS  OF  THE  TIMES 

The  present  movement  for  a  purer  and  more 
direct  democracy — the  initiative,  referendum  and 
recall — is  clearly  an  ineffective  method  of  secur- 
ing mse  legislation,  good  official  agents,  or  even 
a  real  expression  of  the  people's  will.  The 
representative  system  is  the  most  valuable  system 
that  has  thus  far  been  invented  to  make  popular 
government  possible  and  the  introduction  of  more 
democracy,  so-called,  is  a  retrograde  step.  It  is 
going  back  to  the  machinery  of  the  New  England 
town  meeting  and  of  the  Republics  of  Greece  and 
Rome,  which  we  have  given  up  because  conditions 
have  so  changed  as  to  make  it  impracticable  and 
ineffective. 

In  the  small  number  of  people  who  constituted 
the  town  meeting  in  New  England,  or  in  a  Greek 
city,  it  was  possible  to  discharge  the  compara- 
tively simple  functions  fulfilled  by  government 
because  of  the  high  average  intelligence  of  the 
freemen  who  took  part.  But  even  the  Greeks  ran 
into  difficulties,  and  if  you  will  read  Lord  Acton, 
possibly  the  greatest  historical  authority  on  the 


84  ETHICS  IN  SERVICE 

subject,  you  will  find  that  pure  democracy,  as  it 
is  called,  resulted  in  disaster.  We  now  have  a 
much  more  complicated  government  and  more 
democracy  will  not  supply  its  needs. 

The  representative  system,  much  abused  as  it 
is,  is  the  system  that  has  rescued  us  from  plu- 
tocracy. Its  laws  are  the  laws  that  have  done 
the  work.  Congress  has  adopted  laws  that  have 
taken  hold  of  the  corporations,  and  Congress  is 
the  most  perfect  model  of  representative  govern- 
ment. Why  did  Congress  act?  Because  the 
people  were  aroused.  You  must  have  the  people 
aroused  in  order  to  make  any  system  effective, 
and  when  this  is  the  case  under  the  representative 
system,  there  is  no  difficulty  about  its  working. 

The  general  primary  is,  of  course,  a  good  thing 
for  certain  leading  offices,  but  if  you  resort  to  it 
for  selecting  judges  or  subordinate  officials  whose 
qualifications  the  public  cannot  be  supposed  to 
know,  the  result  will  be  anything  but  good.  Men 
will  be  put  into  office  by  some  fortuitous  circum- 
stance, such  as  a  particular  advertisement  in  the 
newspapers.  Thus  your  Senator,  and  your 
governor,  might  well  be  elected  by  the  general 
primary  as  the  result  of  party  selection,  but  if 
the  people  selected  judges  and  subordinate 
officers  they  would  have  to  take  men  without 
regard  to  their  qualifications.  The  short  ballot 
means,  as  I  said,  that  the  people  should  select 


MORE  SIGNS  OF  THE  TIMES  85 

leading   officers   who    should   in   turn   select   the 
subordinate  officers  and  appoint  the  judges. 

To  the  objection  that  voters  will  not  vote  on 
referendums,  it  is  urged  that  they  ought  to  be 
compelled  to  do  so.  This  is  a  futile  remedy. 
Burke  said  you  cannot  bring  an  indictment 
against  the  people,  and  it  is  equally  true  that  you 
cannot  indict  a  great  majority  of  the  electorate 
for  not  complying  with  their  electoral  duties. 
Suppose  you  attempt  to  forfeit  their  right  to 
vote,  you  may  injure  them,  but  you  injure  the 
whole  people  a  great  deal  more.  The  80  per  cent 
of  the  population  whose  welfare  is  directly 
affected  by  the  action  of  the  electorate,  but  who 
are  not  by  law  permitted  to  vote,  are  entitled  to 
have  the  more  intelligent  voters  retained  in  the 
electorate.  For,  I  am  sorry  to  say,  it  is  generally 
among  the  intelligent  part  of  the  community  that 
we  find  neglect  of  electoral  duties.  The  wisest 
course,  therefore,  is  to  give  to  the  people  as  much 
electoral  duty  as  they  are  ordinarily  able  and 
willing  to  perform,  and  no  more.  The  funda- 
mental fallacies  in  the  initiative,  referendum  and 
recall  are,  first,  that  they  impose  on  the  voters 
three  times  the  electoral  work  they  had  to  do 
under  the  representative  system,  and  second,  that 
the  additional  work  involved  is  of  a  kind  that 
could  be  done  much  better  through  agents  than 
by  the  people  directly. 


86  ETHICS  IN  SERVICE 

As  to  the  recall  of  officers,  I  have  only  to  say 
that  if  you  elect  a  man  for  three  years  to  try  to 
help  your  city,  or  state,  you  must  not  make  him 
subject  to  recall  at  any  moment  by  those  candi- 
dates or  people  whom  he  has  had  to  disappoint  in 
order  to  do  his  work  effectively.  Under  the  sys- 
tem of  recall  you  are  not  going  to  secure  the  men 
who  Avill  work  well  by  looking  ahead  to  preserve 
the  real  public  interest,  but  men  who  are  trimmers, 
devoting  their  time  to  politics  and  doing  as  little 
as  possible  to  avoid  criticism.  Your  executive 
officers  should  be  men  of  independence,  courage 
and  ability,  who  are  interested  in  the  public  and 
willing  to  encounter  criticism  for  the  time  being 
in  order  that  they  may  carry  out  those  policies 
that  are  going  to  inure  to  public  benefit  in  the  end. 
By  making  them  subject  to  recall,  you  eliminate 
all  independence  and  courage  in  your  officers. 

Another  sign  of  recent  times  which  will  repay 
consideration  has  been  aptly  termed  ^*  muck- 
raking.^' Mr.  Roosevelt  took  the  word  from 
Bunyan's  ''Pilgrim's  Progress"  to  describe  the 
irresponsible  and  slanderous  attacks  upon  public 
officials,  which  were  made  merely  for  the  purpose 
of  selling  the  wares  of  penny-a-liners.  To  elimi- 
nate corporations  from  politics  and  to  bring  them 
under  government  control,  as  I  have  described, 
it  was  doubtless  necessary  to  formulate  charges 
against  individuals  and  political  leaders  and  it 


MORE  SIGNS  OF  THE  TIMES  87 

was  not  to  be  expected  that  misstatements  would 
not  creep  into  such  personal  attacks.  While 
many  people  were  doubtless  injured  unjustly,  it 
was  essential  that  general  corrupt  conditions 
should  be  revealed  to  the  public.  But  there  were 
a  great  many  who  were  induced  to  go  into  out- 
rageous muckraking  solely  for  profit,  and  maga- 
zines filled  with  such  stuff  and  spreading  real 
poison  among  the  people  were  sent  in  the  mails 
at  a  much  less  rate  than  it  cost  the  government 
to  carry  them.  I  am  glad  to  say  muckraking  is 
not  so  profitable  now  and  it  has  been  greatly 
reduced  in  volume. 

But  the  opportunity  for  attacking  prominent 
and  powerful  men  in  this  way  has  served  to  create 
a  condition  that  we  still  suffer  from.  It  has 
brought  about  a  feeling  that  nobody  is  to  be 
trusted,  and  it  has  spread  too  far  the  idea  that 
all  men  are  corrupt.  In  fact,  it  has  led  to  the 
feeling  that  everybody  is  on  the  same  level  in 
matters  of  character,  learning,  skill  and  effect- 
iveness of  labor,  and,  in  short,  that  every  man 
is  as  good  as  everybody  else  in  everything.  The 
idea  is  that  men  are  on  a  dead  level.  There  is  no 
room  for  leadership  in  such  a  view.  Inequality 
is  essential  to  progress.  If  you  make  a  dead 
level  there  will  be  no  interest  in  life  or  motive 
for  effort,  and  you  will  destroy  the  very  spring 


88  ETHICS  IN  SERVICE 

of  progress  and  the  fountain  of  Christian 
civilization. 

We  now  have  political  parties  that  are  made 
by  vertical  divisions  among  the  voters.  In  each 
party  we  have  the  intelligent  and  the  fortunate, 
with  those  who  are  not  so  intelligent  nor  so 
experienced  nor  so  well  circumstanced.  What  will 
be  the  tendency  of  this  refusal  to  recognize  intel- 
ligence and  high  character  in  those  who  deserve 
it?  It  will  make  the  parties  horizontal  layers  in 
the  body  politic.  It  will  unite  in  one  party  those 
who  are  ignorant  and  unfortunate,  and  array 
them  against  the  intelligent  and  those  who  have 
the  ability  for  leadership.  When  that  comes 
about,  the  Republic  will  be  in  danger,  because  the 
permanence  and  usefulness  of  the  Republic  rests 
upon  the  controlling  influence  of  men  of  intel- 
ligence, experience,  patriotism  and  character. 
This  array  of  a  proletariat  against  intelligent  and 
successful  leadership  produces  factionalism  in 
society.  Factionalism  is  a  class  spirit  which  will 
sacrifice  the  interest  of  the  whole  to  the  interest 
of  the  class.  It  sometimes  permeates  a  majority, 
but  more  frequently  a  minority.  It  is  illustrated 
for  us  by  the  militancy  of  English  women  suffra- 
gists, who  will  sacrifice  property,  art  and  even 
life,  in  order  to  convince  the  majority  that  unless 
they  receive  the  vote  they  will  destroy  all  society. 

We  cannot,  of  course,  yield  to  such  a  force. 


MORE  SIGNS  OF  THE  TIMES  89 

Nor  can  we  yield  to  trades-unionism  when  it  seeks 
to  promote  so-called  labor  interests  by  lawless 
violence  and  dynamite.  The  bonds  of  society  will 
be  loosed  if  we  do.  I  would  not  for  a  moment  be 
thought  to  say  that  those  who  are  in  favor  of 
more  democracy,  througli  the  initiative  and  refer- 
endum, are  factionalists,  and  insincere  in  their 
view  that  that  system  will  work  a  good  result  in 
the  fight  against  corruption  in  politics.  I  only 
think  that  they  are  idealists  in  this  matter,  and 
don't  fully  understand  the  practical  operation  of 
the  system  which  they  recommend. 

In  this  movement  against  corruption  in  politics 
and  corporate  control,  it  w^as  necessary  that  cor- 
porate control  should  be  attacked.  The  muck- 
raking added  to  it  aroused  a  spirit  against  all 
success  in  business,  whether  the  methods  pursued 
were  honest  or  not.  The  result  has  been  a 
hysteria  that  prompts  hostility  to  capital  even 
when  it  is  w^orking  in  honest  lines  and  earning  an 
honest  profit.  In  many  states  it  has  led  to  exces- 
sive restrictive  legislation  and  has  terrorized 
capital ;  it  has  shrunk  investments  and  frightened 
those  w^ho  have  money  until  today  there  is  lots 
of  money  in  the  banks  everywhere  but  it  can't  be 
borrow^ed  for  any  length  of  time  because  nobody 
wdll  put  it  into  permanent  or  active  investment. 

This  state  of  affairs  is  likely  to  continue  for 
some   years.      I    am    not    complaining    about   it 


90  ETHICS  IN  SERVICE 

because  it  is  part  of  what  we  had  to  pay  for  the 
great  reform  that  was  accomplished.  After  a 
while  confidence  wdll  be  restored,  and  we  shall 
come  to  our  senses,  just  as  they  did  in  Kansas 
in  the  Populist  days.  The  Kansas  farmers 
concluded  that  all  their  unhappiness,  and  they 
suffered  real  stress,  was  due  to  the  wicked  mort- 
gagees who  had  lent  them  money  on  mortgage 
security  and  who  insisted  on  the  payment  of 
interest  and  even  the  principal  when  it  was  due. 
So  they  elected  a  Populist  legislature  and  passed 
a  law  providing  that  a  mortgagee  could  not  fore- 
close his  mortgage  under  two  years.  They  did 
this  by  stay  laws  and  by  requiring  an  obstructive 
procedure  in  collection  of  debts.  As  a  result, 
capital  fled  the  state  as  men  would  flee  yellow 
fever.  When  there  was  no  money  at  all  left  in 
the  state  and  they  found  that  they  couldn't  get 
any,  they  began  to  recognize  the  benefit  in  money 
loaned  on  mortgages.  Their  next  legislature 
repealed  all  these  laws  and  devoted  its  attention 
to  advertising  their  change  of  attitude  in  Eastern 
markets  where  money  could  be  had  and  mortgages 
could  be  floated,  promising  to  be  good  thereafter, 
and  in  general  welcoming  the  capitalists  who 
would  advance  money  on  farms. 

The  next  sign  of  the  times  is  pleasanter  to 
dwell  upon,  that  is,  the  spread  of  the  fraternal 
spirit  that  has  grown  out  of  this  great  material 


MORE  SIGNS  OF  THE  TIMES  91 

development.  Material  development  in  this 
country  had  grown  into  corruption,  undue  luxury 
and  waste  at  the  hands  of  men  who  did  not  realize 
the  responsibility  of  having  been  fortunate  in 
accumulating  money,  and  this  absorption  in  the 
chase  for  the  dollar  began  to  pall  on  the  people. 
They  tired  of  statistics  of  the  growth  of  business, 
and  began  to  look  about  for  some  justification 
for  our  activities.  The  change  has  brought  a 
greater  popular  interest  in  the  less  fortunate 
who  have  fallen  behind  in  the  race. 

This  feeling  has  much  weakened  the  influence 
of  the  laissez  faire  school  of  political  and  eco- 
nomic thought  which  was  largely  in  control  when 
I  was  in  college.  Professor  Sumner  was  a  strong 
member  of  this  school.  He  was  sure  of  his 
opinions  and  taught  them.  But  we  have  now 
drifted  away  from  some  of  his  moorings,  and 
today  a  good  many  professors  are  giving  way 
to  their  imagination  in  suggesting  remedies  that 
have  not  stood  the  test  of  experience.  Yet  it  is 
generally  conceded  that  the  government  can  do 
a  lot  to  help  the  people  that  individual  enterprise 
cannot  do.  We  have  also  gone  far  in  the  matter 
of  regulation,  though  there  again  we  are  likely 
to  go  to  excesses. 

It  is  quite  probable  that  we  shall  find  out  by 
hard  knocks  that  the  government  cannot  perform 
everything   now    expected    of   it.      Nevertheless, 


92  ETHICS  IN  SERVICE 

under  the  influence  of  a  greater  fraternal  spirit, 
we  have  done  a  great  deal.  The  housing  statutes, 
the  safety  appliances  both  for  passengers  and 
employees,  the  restrictions  on  the  hours  of  labor, 
the  rules  against  child  labor,  the  pure  food  law, 
the  white  slave  law,  the  thorough  health  regula- 
tions, the  control  of  public  utilities,  the  growth 
in  the  public  charitable  institutions  of  the  state, 
the  parcels  post  and  the  rural  delivery,  all  are 
instances  of  what  the  government  has  done  to 
help  the  individual  by  applying  the  results  of 
public  taxation  and  restrictive  laws.  Moreover, 
we  find  among  rich  men  a  greater  feeling  of 
responsibility  for  their  fortunes,  which  is  proven 
by  their  large  donations.  Among  those  less 
wealthy  we  find  an  acti\dty  in  philanthropic 
organizations  and  in  work  of  a  charitable  char- 
acter that  has  vastly  increased  during  the  last 
decade.  In  education,  too,  we  have  widened  out, 
especially  in  vocational  study,  by  preparing  the 
pupils  directly  for  wage  earning  by  skilled  labor. 
Unfortunately,  however,  many  good  people  in 
social  settlements  and  in  philanthropic  work 
devote  their  attention  so  exclusively  to  the  sore 
and  rotten  spots  of  society  that  they  lose  their 
sense  of  proportion,  and  bring  hysteria  even  into 
this  movement.  Persons  so  affected  come  to  think 
that  if  suffering,  wickedness  or  squalor  is  per- 
mitted to  exist  anyrv^here,  society  must  all  be  bad. 


MORE  SIGNS  OF  THE  TIMES  93 

There  must  always  be  sin,  and  there  must  always 
be  neglect  and  waste  until  we  get  to  the  millen- 
nium, which  is  not  yet  so  near  that  we  can  see  and 
feel  it.  In  making  our  estimate  of  human  prog- 
ress, we  must  size  up  the  whole  situation  and 
take  the  average  condition.  Similarly  in  attempt- 
ing to  remedy  a  local  or  special  evil,  we  must 
avoid  the  injustice  of  unduly  sacrificing  the 
general  welfare.  By  extreme  measures  planned 
to  accomplish  what  may  be  good  in  the  abstract 
but  is  still  not  practical,  we  can  make  the  cause 
ridiculous. 

Eugenic  reformers,  for  instance,  plan  to  rush 
right  into  regulation  of  human  society  and 
arrange  marriages  just  as  horses  are  bred  at 
a  stock  farm.  It  has  made  some  progress  in 
Wisconsin,  where  they  have  required  examination 
of  those  about  to  marry  and  certificates  of  health 
before  issuing  the  marriage  license.  But  I  don't 
think  the  American  people  are  quite  ready  to 
submit  to  that  kind  of  regulation.  If  it  could  be 
enforced,  it  might  be  a  good  thing  for  the  race, 
but  a  strong  sentiment  on  the  other  side  makes 
it  impractical.  In  Wisconsin  the  law  is  being 
ignored  and  in  foreign  countries  where  restric- 
tions upon  marriages  are  rigorously  enforced, 
marriage  is  dispensed  with  and  concubinage 
results. 

There    is    another    feature    of    this    present 


94  ETHICS  IN  SERVICE 

hysterical  condition  that,  I  hope,  is  going  to 
disappear.  But  we  might  as  well  recognize  it. 
That  is  this  wish  to  exculpate  the  sins  of  those 
who  are  unfortunate  by  putting  the  blame  on 
society  at  large.  The  desire  seems  to  be,  if 
possible,  to  make  scapegoats  of  those  who  are 
fortunate.  It  is  this  sentiment  that  has  given 
rise  to  investigations  into  the  cooperative  stores 
in  order  to  charge  their  managers  with  respon- 
sibility for  the  prostitution  of  some  of  their 
employees  because  of  the  wages  they  pay.  As 
the  investigation  shows,  there  never  was  a  more 
unfounded  charge,  but  the  very  fact  that  it  was 
used  is  an  indication  of  what  I  mean.  It  mani- 
fests itself  in  the  movement  to  dispense  with  all 
reticence  and  amplify  in  every  way  sex  education 
on  the  theory  that  society  is  to  blame  because  it 
is  not  telling  young  people  of  the  danger  of  sin. 
You  do  not  have  to  stand  over  a  sewer  and 
breathe  in  the  bad  smell  in  order  to  recognize  that 
it  has  a  bad  smell  when  you  meet  it  again. 

I  am  strongly  in  favor  of  having  young  men 
and  young  women  know  certain  things  about  sex 
matters,  the  young  men  through  lectures  in  school 
or  college,  and  the  young  women  through  instruc- 
tion by  women  who  can  tell  them  in  a  short  time 
all  they  need  to  know;  but  this  idea  of  empha- 
sizing and  expanding  the  subject  and  of  culti- 
vating a  free  interchange  of  thoughts  between 


MORE  SIGNS  OF  THE  TIMES  95 

the  sexes  is  most  dangerous.  For  one  hundred 
years  these  subjects  have  been  suppressed  in 
America  to  the  great  benefit  of  society  and  it  is 
well  that  they  should  remain  so.  So-called 
reforms  in  this  direction  are  made  the  excuse  for 
pruriency  in  drama,  in  novels,  in  moving  pictures 
and  in  other  ways  that  are  distinctly  vicious  in 
their  effect.  They  promote  lubricity  and  although 
such  literature  and  exhibitions  may  have  the 
support  of  good  people  who  think  they  are 
advocating  great  principles,  they  should  be 
condemned. 

Take  another  instance.  Of  course  we  all  wish 
penitentiaries  to  be  free  from  disease,  and  we  are 
interested  in  prison  reform  to  the  extent  of 
making  them  as  healthful  as  possible  for  the 
prisoners.  But  this  idea  of  making  society  a 
scapegoat  and  ridding  everybody  from  respon- 
sibility for  his  sins,  on  the  theory  that  his  grand- 
father or  grandmother  was  wicked  and  he  is  only 
doing  it  because  of  his  heredity,  makes  the  preser- 
vation of  law  and  order  impossible,  and  destroys 
the  peace  and  comfort  of  those  who  are  law- 
abiding.  The  penitentiary  is  a  place  for  punish- 
ment and  reformation.  It  is  not  a  rest  cure  or  a 
summer  hotel.  I  have  no  doubt  that  prison  dis- 
cipline can  be  improved ;  but  changes  based  on  the 
theory  that  convicted  criminals  are  disguised 
heroes  who  only  need  an  appeal  to  their  honor 


96  ETHICS  IN  SERVICE 

and  freedom  from  restraint  to  make  them  good 
citizens  will  have  humiliating  but  perhaps  instruc- 
tive results. 

But  these  extravagances  should  not  blind  us 
to  the  real  benefit  of  this  growing  sense  of 
brotherhood  among  men.  It  is  shown  not  only 
by  the  fact  that  it  is  preached  in  the  pulpits  and 
emphasized  in  the  press  and  in  magazines,  but, 
still  more,  by  the  fact  that  it  has  been  taken  up 
by  politicians.  When  they  get  hold  of  a  subject 
and  believe  it  needs  elaboration,  you  may  know 
that  it  has  a  lodgment  with  the  people.  Nor  can 
we  ignore  the  fact  that  this  feeling  has  been 
increased  by  indignation  at  the  political  and 
social  corruption  incident  to  our  enormous 
material  development.  The  people  have  become 
ashamed  of  it  in  a  sense. 

With  many,  this  growing  sense  of  brotherhood 
stimulates  the  movement  toward  state  socialism. 
Our  excessive  paternalism  leads  on  to  this.  The 
view  that  the  government  can  do  anything,  remedy 
every  evil,  level  every  inequality  and  make  every- 
body happy,  would  have  a  most  disastrous  effect 
on  production  and  individual  effort  and  enter- 
prise. The  next  step  will  be  to  curtail  the  right 
of  property.  It  is  difficult  to  define  Socialism  as 
a  practical  plan  of  government.  The  plan  as  set 
forth  in  a  little  book  published  in  Austria  called 
*'The  Quintessence  of  Socialism'*  is  as  definite  as 


MORE  SIGNS  OF  THE  TIMES  97 

any  that  I  know.  It  involves  such  governmental 
restriction  of  individual  freedom  of  action  and 
such  real  tyranny  that  the  American  people  could 
not  stand  it.  In  fact,  the  regulation  of  the  details 
of  life  by  a  system  of  awards  for  particular  work, 
made  by  committees  instead  of  by  the  operation 
of  the  law  of  supply  and  demand,  would  bring 
about  a  condition  that  would  burst  itself  in  a  very 
little  time.  As  ^' Billy''  Sumner  used  to  say,  *^If 
you  have  that  kind  of  a  system,  I  choose  to  be  on 
the  committee." 

Another  sign  of  the  times  is  trades-unionism. 
Trades-unionism  is  essential  in  the  cause  of  labor. 
One  man  as  a  laborer  is  in  a  position  where  it  is 
utterly  impossible  for  him  to  deal  on  an  equality 
with  his  employer.  The  employer  has  capital  and 
can  get  along  without  his  services,  but  he  cannot 
get  along  \\ithout  the  wages  which  the  employer 
pays  him.  Therefore,  laborers  unite  and  con- 
tribute to  a  fund  which  enables  them  to  withdraw 
together  and  say  to  the  employer:  ^^Here,  we 
propose  to  deal  with  you  on  a  level.  We  have 
great  force.  We  have  a  fund  w^hich  will  enable 
us  to  live  while  out  of  work  and  we  are  going  to 
embarrass  you  as  far  as  possible  by  withdrawing 
from  your  employ  unless  you  do  justice  to  us  in 
the  matter  of  terms  of  service."  That  power  of 
union  cultivated  in  organized  labor  has  done  a 


98  ETHICS  IN  SERVICE 

great  deal  to  raise  wages  and  bring  about  equi- 
table terms  of  service. 

Organized  labor  is  only  a  small  part  of  labor 
generally;  but  organized  labor  exercises  great 
influence  in  legislatures.  It  is  thought  to  hold 
the  balance  of  power  at  the  polls  and  has 
undoubtedly  exercised  beneficent  influence  in 
securing  laws  to  control  healthy  conditions  for 
work,  safety  appliances  on  railroads,  limitation 
upon  the  hours  of  labor  and  a  number  of  other 
laws  that  would  not  have  been  passed  if  organized 
labor  had  not  brought  political  influence  to  bear 
upon  members  of  the  legislature. 

On  the  other  hand,  a  sense  of  their  power  has 
sometimes  given  leaders  of  labor  unions  a  lack  of 
discretion,  a  truculence  and  an  unreasonable  and 
unjust  attitude.  Like  the  employers,  they  have 
been  dependent  upon  public  opinion  and  after  a 
time  public  opinion  has  controlled  them.  Prob- 
ably the  greatest  evil  that  stands  out  from  all  the 
good  work  unions  have  done,  is  the  dead  level  to 
which  they  seek  to  bring  the  wages  of  skilled 
manual  labor.  Organized  labor  insists  on  making 
a  class  and  then  having  that  class  receive  the 
same  wages,  and  it  does  nothing  to  encourage 
individual  effort  by  consenting  to  the  payment  of 
higher  wages  to  the  man  of  experience,  industry 
and  skill  than  to  the  mediocre  and  lazy.  It  will 
in  some  way  have  to  obviate  that  difficulty  which 


MORE  SIGNS  OF  THE  TIMES  99 

works  against  the  cause  of  labor  and  the  interest 
of  society.  Moreover,  its  leaders  do  not  discour- 
age, as  they  should,  lawlessness  as  a  means  of 
achieving  their  industrial  ends.  The  history  of 
the  dynamiters  in  California  and  of  the  civil  war 
in  Colorado  shows  this. 

On  the  other  hand,  we  find  many  in  the  ranks 
of  labor  offering  the  most  effective  opposition  to 
the  increase  in  socialism.  The  leaders  of  trades- 
unionism  have  no  sympathy  with  the  I.  W.  W. 
The  I.  W.  W.,  however,  led  by  Hayivood  and 
others,  serve  a  useful  purpose  by  furnishing  an 
awful  example  for  the  average  workingman. 
When  they  go  around  with  the  signs,  *^No  God, 
No  Country,  No  Law,*'  creating  disgust  and 
conservatism  in  the  ranks  of  organized  labor, 
they  do  not  know  what  a  good  thing  they  are 
doing.  They  act  blindly,  but  they  are  offering  a 
sample  of  what  may  be  expected  if  organized 
labor  is  tempted  to  excesses.  We  are  going  to 
have  organized  labor  for  all  time,  and  we  ought 
to  have  it.  While  I  would  go  to  the  fullest  extent 
with  courts  and  even  with  the  army  to  protect  a 
non-union  man  in  freedom  of  labor,  if  I  were  a 
workingman  myself  I  would  join  a  labor  union 
because  I  believe  that  if  such  unions  can  be  prop- 
erly conducted,  they  are  useful  to  promote  the 
best  interests   of  labor   and   of   society.     What 


100  ETHICS  IN  SERVICE 

trades-unionism  needs  is  leaders  to  teach  its 
members  common  sense. 

The  truth  is,  the  longer  you  live,  the  more  you 
will  find  that  nothing  is  perfect,  and  everything 
has  a  side  that  can  be  criticised.  What  you  have 
to  do  is  to  sum  up  the  whole,  take  the  average 
benefit  which  comes  from  it,  and  attempt  to 
increase  that  average.  Now  I  am  an  optimist. 
People  say  the  initiative  and  the  referendum, 
against  which  I  have  talked,  are  like  a  ratchet 
wheel.  If  you  extend  power  to  the  people  and 
the  voters,  you  will  never  get  it  back  again.  I 
agree  that  is  a  rule  that  generally  works,  but  with 
respect  to  the  initiative  and  the  referendum  there 
is  an  element  that  may  cause  an  exception  to  the 
rule.  The  initiative  will  throw  a  heavy  burden 
on  the  electorate.  Cranks  and  their  followers 
will  constantly  be  compelling  voters  to  act  upon 
wild  proposals.  As  the  popular  disgust  grows, 
the  requirements  in  respect  to  the  number  of 
signers  will  be  made  so  heavy  that  a  successful 
petition  can  rarely  be  secured.  The  referendum 
will  then  be  limited  to  such  matters  as  the  legis- 
lature chooses  to  refer  and  will  then  cease  to  be 
a  practical  burden. 

We  must  pray  that  the  injurious  excesses  which 
I  have  been  describing  as  the  cost  we  have  to  pay 
for  a  great  reform,  may  not  unsettle  the  founda- 
tion  of  our  government   and   destroy  the   self- 


MORE  SIGNS  OF  THE  TIMES  101 

imposed  restraint  arranged  in  the  Constitution 
to  make  that  government  just  to  the  individual, 
to  the  minority  and  to  those  who  do  not  vote.  If 
we  do  not  disturb  those  foundations,  we  can 
count  on  the  common  sense  of  the  American 
people  to  bring  them  back  to  sane  views,  and  we 
can  rejoice  and  continue  to  rejoice -in,  the  .preser- 
vation of  a  popular  government  thiai  .'for.  on<&. 
hundred  and  twenty-five  years  ha;^  vindicat;ed  its 
conservatism  and  justice  before  the"  World  'and 
will  continue  to  do  so  forever. 


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